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EXCESS  CONDEMNATION 


A     REPO  RT 


OF     THE 


Committee  on  Taxation 

OF  THE  CITY  OF  NEW  YORK 


WITH  A  REPORT  PREPARED  BY 

HERBERT     S.     SWAN 

FOR     THE 

National   Municipal   League 


NEW     YORK 
1915 


EXCESS  CONDEMNATION 


A    REPORT 


OF     THE 


Committee  on  Taxation 

OF  THE  CITY  OF  NEW  YORK 


WITH  A  REPORT  PREPARED  BY 

HERBERT     S.     SWAN 

FOR     THE 

National   Municipal   League 


NEW     YORK 
1915 


COMMITTEE  ON  TAXATION  OF  THE  CITY   OF  NEW  YORK. 


APPOINTED  APRIL   10.J914. 
BY  HONORABLE  JOHN  PURROY   MITCHEL.   MAYOR. 


Alfred  E.  Marling^ 

Chairman 
#-jrr^Y^       Edwin  R.  A.  Seligman, 

^  Chairman,  Executive  Committee 

n  t>  Frederic  C.  Howe, 

^QfC.  Secretary 

^O^^     Robert  S.  Binkerd 
\\^         George  Cromwell* 
'  •  Frank  Harvey  Field 

^        _      Joseph  N.  Francolini 
\  ^l_7      John  J.  Halleran 
Hamilton  Holt 
Jeremiah  W.  Jenks 
Ardolph  L.  Kline 
Frederick  C.  Leubuscher  ,,; 

Walter  Lindner  ^ 

Cyrus  C.  Miller  \  ^  (  -^ 

George  V.  Mullan 
Louis  Heaton  Pink 
Lawson  Purdy 
David  Rumsey 
Oscar  R.  Seitz 
Frederic  B.  Shipley 
Robert  E.  Simon 
Franklin  S.  Tomlin 
Charles  T.  White 
Delos  F.  Wilcox 
Collin  H.  Woodward 


Laurence  Arnold  Tanzer, 

Executive  Secretary 


*  Resigned  January  12,  1915. 


TABLE  OF  CONTENTS 


PAGE 

Report  of  Committee 5 

Report  of  Herbert   S.   Swan 9 

Chapter  I.    The  Argument  for  Excess  Condemnation 13 

11.     Financing  London  Street  Improvements  by  Recoupment 23 

III.  The  Clearance  of  Unsanitary  Areas  in  English  Cities 39 

IV.  Excess  Condemnation  in  the  United  States 53 

V.  Conclusions   of   the   Committee  on   Excess    Condemnation,    Na- 
tional Municipal  League 62 

Appendix  I.     Statements — 

A.  Probable   Financial   Advantage   of    Excess    Condemnation   Had    It 

Been     Exercised     in     the     Widening     of     Livingston     Street, 

Brooklyn    65 

B.  Financial  Results  of  Recoupment  in  London 67 

C.  Financial  Results  of  Clearances  in  London IZ 

Appendix  II.    Acts  on  Excess  Condemnation  in  the  United  States — 

A.  New  York  City,  1812 11 

B.  Brooklyn,  New  York,  1833 78 

C.  Massachusetts,   1904   78 

D.  Massachusetts,   1912    84 

E.  Ohio,  1904  85 

F.  Pennsylvania,  1907 85 

G.  Connecticut,    1907    86 

H.     Oregon,   1913    87 

I.    Virginia,  1905   88 

K.     Maryland,   1908    88 

Appendix  III.     Constitutional  Amendments  Adopted — 

A.  Massachusetts   90 

B.  New  York  90 

C.  Ohio   90 

D.  Wisconsin  91 

Plans— 

Replotting  in  Frankfort   15 

Kingsway,  London 31 

New  York  City  Excess  Condemnation  Act,  Laws  of  1915,  Chapter  593 92 

Photographs   and   Maps    Showing   Operation    of    System    Heretofore    Used    in 
New  York — 

Explanatory  Note   99 

East  Side  of  West  Broadway  Between  Barclay  and  Vesey  Streets 100 

New  Chambers  Street  Between  Madison  Street  and  New  Bowery,  and  New 

Bowery  Between  Madison  Street  and  New  Chambers  Street 102 

North  Side  of  New  Chambers  Street  Between  William  and  Pearl  Streets..  104 

West  Side  of  Lafayette  Street  Between  Reade  and  Pearl  Streets 106 

West  Side  of  Lafayette  Street  Between  Spring  and  Prince  Streets 108^ 

East  Side  of  Varick  Street  Between  Downing  and  Carmine  Streets 110 

East  Side  of  Seventh  Avenue  Between  Carmine  and  Leroy  Streets 112 

East  Side  of  Seventh  Avenue  Between  Christopher  and  West  Tenth  Streets.  114 

West  Side  of  Seventh  Avenue  Between  West  Tenth  and  Charles  Streets 116 

Plan  of  Flatbush  Avenue  Extension,   Brooklyn,   Between   Willoughby  and 

Fulton   Streets    119 

Index   121 


Report  of  Committee  on  Taxation. 

May  20,  1915. 
Hon.  John  Purroy  Mitchel, 

Mayor  of  the  City  of  New  York, 

New  York. 

Dear  Sir — The  method  of  acquiring  property  for  public  use,  known  as 
excess  condemnation,  has  been  carefully  considered  by  this  Committee  as 
a  possible  means  of  creating  additional  values  and  lessening  the  ultimate 
cost  to  the  city  of  street  openings  and  similar  improvements. 

A  constitutional  amendment  permitting  excess  condemnation  was 
adopted  in  this  state  in  1913.  This  is  of  especial  importance  to  the  City  of 
New^  York.  The  legislature  at  its  last  session  passed  an  act  which  became 
law  May  11,  1915  (Laws  of  1915,  Chapter  593),  empowering  the  City  of 
New  York  to  exercise  this  power.  There  are  three  main  reasons  for  grant- 
ing to  the  city  power  to  condemn  more  land  than  is  needed  for  the  actual 
improvement  with  power  to  sell  or  lease  the  surplus : 

(a)     Control  of  land  adjacent  to  improvements. 
{h)     Re-plotting  of  remnants  and  irregular  building  lots. 
{c)     Saving  in  expense  to  the  city  through  sale  of  abutting  property 
at  increased  values  due  to  the  improvement. 

Control  of  Land  Adjacent  to  Improvements 

American  cities  have  been  hampered  in  effective  city  plan  development 
and  in  creating  dignified  and  artistic  public  places  by  the  free  and  unre- 
stricted use  of  abutting  property  by  private  owners.  Many  of  our  finest 
squares  and  parkways  are  lined  with  stables,  billboards,  shops,  factories,  gas 
tanks,  saloons.  There  is  no  orderly  architectural  arrangement.  One  and 
two-story  buildings  adjoin  twelve  and  twenty-story  structures.  Residences, 
shops,  stores,  factories  crowd  one  another  close.  This  condition  has  de- 
creased property  values  and  the  attractiveness  of  public  places.  It  is  to  the 
advantage  of  the  private  owner  as  well  as  to  that  of  the  city  that  neighbor- 
hoods should  not  be  allowed  to  run  down,  that  our  public  places  be  sur- 
rounded by  buildings  in  keeping  with  the  improvement. 

The  city  should  have  the  power  to  sell  or  lease  the  excess  land  subject 
to  suitable  restrictions.  If  this  is  done,  New  York  will  be  enabled  to  develop 
streets  and  public  places  comparable  to  those  of  Paris  and  Vienna. 

The  convenience  and  enjoyment  of  the  community  should  take  pre- 
cedence of  the  whim  of  the  private  owner. 

We  have  but  to  look  at  our  bridge  approaches,  our  small  parks,  our 
public  squares  and  places  to  realize  that  successful  city  planning  requires 
the  control  of  adjacent  property. 


Re-Plotting  of  Remnants  and  h'regiilar  Building  Plots 
New  York  furnishes  several  "  horrible  examples  "  in  cutting  new  streets 
through  sections  already  built  up  without  excess  condemnation.  Delancey 
Street  in  Manhattan  and  Flatbush  Avenue  Extension  in  Brooklyn  have  both 
been  held  back  in  development  and  in  the  increased  value  which  the  im- 
provement promised,  by  the  small,  irregular,  odd-shaped  building  plots 
which  were  left.  These  are  in  many  cases  unsuited  to  proper  building  unless 
united  with  adjoining  properties  held  by  other  owners.  The  public  loses 
in  tax  value  and  sightliness  and  the  private  owner  is  injured  because  his  lot 
is  not  available  for  suitable  development.  A  glance  at  the  maps  accom- 
panying this  report,  showing  the  lot  lines  after  these  streets  were  cut  through, 
is  proof  conclusive  of  loss  and  waste  under  the  old  system.  Although  the 
Flatbush  Avenue  Extension  has  been  practically  completed  for  three  years 
and  despite  its  strategic  position,  development  has  not  begun.  The  street 
still  looks,  to  borrow  an  expression  of  Lawson  Purdy's,  "  as  if  it  had  been 
devastated  by  an  earthquake."  European  nations  long  ago  met  this  situa- 
tion and  have  empowered  local  governments  to  relocate  and  replot  such  areas. 
Excess  condemnation  would  leave  the  city  free  to  rearrange  and  subdivide 
the  land  fronting  the  improvement  into  plots  of  the  size  and  shape  best  suited 
to  the  proposed  development. 

Saving  of  Expense  to  the  City  Through  Sale  of  Abutting  Property  at 
Increased  Values  Due  to  the  Improvements 

While  the  necessity  for  excess  condemnation  rests  mainly  upon  the 
control  of  adjacent  land  and  the  replotting  of  remnants,  a  substantial  saving 
of  dollars  and  cents  will  result  in  many  instances.  It  must  not  be  assumed 
that  excess  condemnation  will  in  every  case  bring  revenue  to  the  city  or 
reduce  the  cost  of  public  improvements.  Sometimes  excess  condemnation 
is  justified  for  social  purposes  alone,  but  often  financial  gain  to  the  city  will 
also  result.  It  is  equitable  that  the  increased  value  which  arises  solely  from 
the  enterprise  of  the  community  in  constructing  a  boulevard  or  a  park  or 
public  square  should  go  to  the  city  and  not  to  those  who  are  fortunate  enough 
to  own  property  in  the  path  of  the  improvement.  If  the  cost  of  public 
improvements  is  reduced  the  city  will  be  better  able  to  continue  its  efforts 
for  a  rational  and  convenient  city  plan  without  too  great  a  financial  burden. 

We  can  learn  much  from  Livingston  Street,  in  Brooklyn.  In  1905  this 
street  was  widened  from  50  to  80  feet  by  taking  30  feet  from  the  southerly 
side.  Livingston  Street  runs  parallel  to  Fulton  Street,  and  the  purpose  was 
to  relieve  the  overcrowded  condition  of  Fulton  Street.  The  land  to  a  depth 
of  100  feet  on  the  southerly  side  of  Livingston  Street,  together  with  the 
improvements,  was  assessed  at  $1,268,700.  The  awards  made  for  taking 
30  feet  from  the  front  amounted  to  $1,989,890,  or  about  57  per  cent,  in 
excess  of  the  assessed  valuation  of  the  entire  property.  In  many  instances 
the  buildings  were  easily  adapted  to  the  new  conditions,  new  fronts  were 


built,  and  as  a  result  of  the  improvement  the  rental  and  fee  value  was  largely 
increased.  In  1911,  six  years  after  the  widening,  the  assessed  valuation  of 
the  remaining  land,  though  but  70  feet  in  depth,  had  increased  219  per  cent, 
over  the  assessed  valuation  of  the  land  100  feet  in  depth  in  1905.  One- 
quarter  of  the  cost  of  the  widening  of  the  street  was  at  first  assessed  upon  the 
local  property  owners.  The  area  of  assessment  was  so  large  that  a  consider- 
able portion  of  the  cost  was  to  be  paid  by  owners  of  property  not  directly 
benefited.  But  through  an  act  of  the.  legislature  the  assessment  was  can- 
celed and  the  cost  of  the  entire  proceeding  was  paid  by  the  city  by  the 
issuance  of  bonds. 

Where  the  city  is  compelled  to  take  a  considerable  portion  of  a  lot 
or  building  it  has  to  pay  practically  the  cost  of  the  entire  parcel  and  would 
do  better  to  acquire  the  fee  of  the  whole  plot  and  secure  the  benefit  from 
the  increased  value  of  the  remainder. 

The  experience  of  London  in  financing  street  improvements  by  excess 
condemnation  should  be  a  valuable  help  to  us.  From  1889  to  1913  the 
London  County  Council  used  excess  condemnation  in  forty-five  street 
proceedings,  the  gross  cost  of  which  was  $44,246,125. 

Without  excess  condemnation  extensive  replanning  and  reconstruction 
in  the  older  parts  of  London  could  not  have  been  carried  out.  While 
revenue  is  not  the  principal  reason  for  excess  condemnation  it  is  a  strong 
incidental  consideration. 

We  have  secured  from  the  National  Municipal  League  an  unpublished 
report  on  the  subject  of  excess  condemnation,  prepared  for  one  of  its  com- 
mittees two  or  three  years  ago  by  Herbert  S.  Swan.  This  report,  revised 
and  brought  up  to  date,  is  transmitted  herewith.  It  contains  important 
information  not  generally  accessible  in  regard  to  the  use  of  excess  condemna- 
tion in  London  and  other  English  cities  and  also  a  history  of  the  development 
of  the  movement  for  excess  condemnation  in  this  country.  We  believe  that 
this  report  should  be  made  available  to  the  public,  and  therefore  we  recom- 
mend that  it  be  printed  as  promptly  as  possible  for  general  distribution. 

The  New  York  City  Excess  Condemnation  Act 

The  act  which  has  just  become  law  inserts  in  the  Charter  sections  to  be 
known  as  970-a  and  970-b.  It  gives  to  the  city  power  to  acquire  more 
property  than  is  needed  for  the  actual  construction  of  an  improvement  and 
permits  the  Board  of  Estimate  and  Apportionment  to  authorize  the  taking 
of  such  excess  lands.  The  city  may  not  take  additional  land  beyond  what 
is  sufficient  to  form  suitable  building  sites  abutting  on  the  improvement. 
We  recommend  that  the  act  be  printed  as  an  appendix  to  this  report. 

Respectfully  submitted, 

(Sgd.)     Alfred  E.  Marling, 

Chairman. 


REPORT 


ON 


EXCESS  CONDEMNATION 


PREPARED  BY 

HERBERT    S.    SWAN 

FOR 

THE  NATIONAL  MUNICIPAL  LEAGUE 


11 


CONTENTS. 

Chapter      I.  The  Argument  for  Excess  Condemnation. 

Chapter     IL  Financing  London  Street  Improvements  by  Recoupment. 

Chapter  III.  The  Clearance  of  Unsanitary  Areas  in  English  Cities. 

Chapter  IV.  Excess  Condemnation  in  the  United  States. 

Chapter     V.     Conclusions   of    the    Committee    on    Excess    Condemnation, 
National  Municipal  League. 

Appendix  I.     Statements : 

A.  Probable  Financial  Advantage  of   Excess   Condemnation  had  it 

been  Exercised  in  the  Widening  of  Livingston  Street,  Brook- 
lyn. 

B.  Financial  Results  of  Recoupment  in  London. 

C.  Financial  Results  of  Clearances  in  London. 

Appendix  IL     Acts  on  Excess  Condemnation  in  the  United  States. 

A.  New  York  City  1812. 

B.  Brooklyn,  New  York,  1833.      , 

C.  Massachusetts  1904. 

D.  Massachusetts  1912. 

E.  Ohio  1904. 

F.  Pennsylvania  1907. 

G.  Connecticut  1907. 
H.  Oregon  1913. 

I.     Virginia  1906. 
K.     Maryland  1908. 

Appendix  III.     Constitutional  Amendments  Adopted. 

A.  Massachusetts. 

B.  New  York. 

C.  Ohio. 

D.  Wisconsin. 


13 


Chapter  I. 
The  Argument  for  Excess  Condemnation. 

The  case  for  excess  condemnation  must,  in  the  main,  rest  on  two  argu- 
ments— the  replotting  of  remnants  and  the  control  of  land  adjacent  to  im- 
provements. The  Massachusetts  Committee  on  Eminent  Domain  stated  the 
case  for  the  replotting  of  remnants  most  ably  in  the  following  words : 

"  The  land  abutting  on  any  existing  street  is  divided  and  ar- 
ranged in  lots,  which  as  well  as  the  circumstances  have  admitted,  are 
adapted  to  the  street  in  its  present  condition,  and  the  buildings  there- 
on are  constructed  in  conformity  therewith.  Any  widening  of  the 
street  not  only  destroys  the  existing  buildings,  but,  by  reducing  the 
size  of  the  abutting  lots,  leaves  the  residues  or  remnants  of  many  of 
them  of  such  shape  and  size  as  to  be  entirely  unsuited  for  the  erection 
of  proper  buildings  unless  and  until  these  remnants  have  been  united 
with  the  adjoining  properties,  generally  with  those  in  the  rear,  which 
are  thus  enabled  to  extend  out  to  the  new  street  lines. 

"  The  same  condition  is  found,  and  frequently  even  to  a  greater 
extent,  when  a  new  thoroughfare  is  laid  out  through  existing  blocks 
covered  with  buildings. 

"  Hence,  when  an  existing  street  is  widened  or  a  new  thorough- 
fare is  laid  out  under  the  present  system,  the  lots  on  one  or  both 
sides  of  the  new  or  widened  street  are  left  in  such  condition  that, 
until  a  rearrangement  can  be  made,  no  suitable  buildings  can  be 
erected,  and  the  public  benefit  to  be  derived  from  the  improvement 
is  in  great  measure  lost."  (1) 

So  serious  and  far-reaching  in  their  effect  are  these  disastrous  economic 
consequences  resulting  from  the  present  system  of  widening  old  and  laying 
out  new  streets,  that  they  furnish  the  strongest  argument  in  favor  of  the 
adoption  of  excess  condemnation. 

The  maps  used  by  Mr.  Lawson  Purdy  before  a  committee  of  the  New 
York  Assembly  at  Albany,  in  advocating  the  adoption  of  a  resolution  to 
amend  the  Constitution  so  as  to  authorize  excess  condemnation,  demon- 
strate this  advantage  resulting  from  excess  condemnation  more  eloquently 
than  any  w^ords.*  These  maps  graphically  present  the  infinitesimal 
morsels,  the  narrow,  elongated  gores,  and  the  shallow  remnants  with  diag- 
onal fronts  of  varying  widths,  so  frequently  left  by  street  improvements. 
In  some  instances  the  angles  are  not  right  angles;  and  the  opposite  sides 
of  the  same  lot  are  neither  parallel  nor  equal.  When  Delancey  Street  in 
New  York  was  widened  to  provide  for  the  bridge  approach  a  tapering  strip 
with  an  area  of  some  90.8  square  feet  was  left  extending  along  the  street 


(1)  Mass.  House  Doc.  No.  288.  Leg.  Sess.  1904,  pp.  4-5. 

*  The  writer  is  indebted  to  Mr.  Purdy  for  the  maps  and  photographs  used  in 
this  report  to  illustrate  New  York  conditions. 


14 

for  more  than  one  hundred  feet  with  an  average  width  of  ten  and  thirteen- 
sixteenths  inches.  Several  other  strips  less  than  ten  feet  in  width  were 
left  fronting  along  the  widened  thoroughfare  for  an  equal  distance.  These 
strips  robbed  the  lots  adjoining  them  in  the  rear  of  their  natural  frontage 
on  Delancey  Street. 

A  thoroughfare  has  been  proposed  in  Boston,  which,  when  completed, 
would  leave  only  48  per  cent,  of  the  whole  area  of  the  several  estates 
through  which  it  would  cut,  the  highway  itself  appropriating  52  per  cent, 
of  the  sum  of  the  adjacent  plots.  Remnants  of  irregular  shapes  and  sizes 
and  with  an  average  depth  of  but  34  feet,  would  be  left  fronting  on  this 
improvement  for  a  distance  of  5,720  feet.  (2) 

The  following  are  examples  of  plots  left  by  improvements  actually 
made  in  New  York : 

At  the  corner  of  Elizabeth  and  Delancey  Streets  a  triangular  segment 
9.10 X  1.51  feet  in  dimension,  or  6.87  square  feet  in  area;  between  Mulberry 
Street  and  Cleveland  Place  on  Delancey  Street,  a  segment  1.47x8.98,  or 
6.59  square  feet  in  area;  between  Barclay  and  Vesey  Streets  on  West  Broad- 
way, a  segment  2.6x13.5,  or  17.27  square  feet  in  area;  on  Prince  Street 
and  Flatbush  Avenue,  one  4.3  x  10.3,  or  21.96  square  feet  in  area ;  on  Lafay- 
ette Street  and  Flatbush  Avenue,  one  1.7x6.4,  or  5.28  square  feet  in  area; 
and  on  Lafayette  and  Pearl  Streets,  one  4.8x9.2,  or  21.63  square  feet  in 
area. 

It  is  self-evident  that  the  utility  for  commercial  purposes  of  the  lots 
fronting  on  these  street  extensions  and  widenings  is  greatly  impaired.  Lots 
which,  if  united  under  single  ownership,  would  afford  sites  for  substantial 
business  blocks  commensurate  with  the  importance  of  the  street,  and  which 
would  bring  in  large  rents,  are  now  on  or  very  near  the  margin  of  no-rent 
land.  They  are  so  small  and  irregular  in  size  as  to  be  totally  unfit  for  im- 
provement. "  There  are  streets  in  New  York  today,"  says  Mr.  Lawson 
Purdy,  "  which  have  been  widened  for  ten  years  but  still  look  as  though 
they  had  been  devastated  by  an  earthquake.  The  reason  is  that  when  the 
map  is  inspected  it  is  found  that  there  are  all  sorts  of  small  bits  of  land  in 
separate  ownerships,  just  as  they  were  when  the  street  was  widened." (3) 

Since  each  parcel,  by  the  mere  fact  of  its  adjacence,  commands  the 
values  of  the  neighboring  plots,  every  owner  becomes,  as  it  were,  a  monopo- 
list. Knowing  the  strategic  position  of  his  own  remnant  and  that  its  union 
with  any  other  would  immediately,  without  any  effort  on  his  own  part, 
result  in  a  greater  value  than  the  sum  of  the  two  separately,  each  proprietor 
overestimates  the  true  importance  of  his  own  plot  and  shrewdly  bargains 


(2)  Preliminary  report  of  the  Board  of  Railroad  Commissioners,  the  Board  of 
Harbor  and  Land  Commissioners,  the  Boston  Transit  Commission  and  the  Metropoli- 
tan Park  Commission,  sitting  jointly,  relative  to  public  improvements  for  the  Metro- 
politan District,  Senate  Document  No.  27  of  the  Commonwealth  of  Massachusetts, 
1910,  pp.  9-10. 

(3)  National  Conference  on  City  Planning,  1911. 


BEFORE  REPL0TTIN6 


AFTER  REPLOTTING 


REPL0TTIN6  in  FRANKFORT 

From  Der  StQdtebQU,b^  J.Stubben,  1907. 


17 

to  get  not  only  the  proportion  that  his  own  parcel  contributes  to  this  in- 
creased value,  but  also  as  much  more  as  he  is  able  to  wring  from  the  pur- 
chaser. Not  succeeding  in  his  designs  by  legitimate  means,  the  owner,  if 
he  be  unscrupulous,  sometimes  erects  so  objectionable  a  building  on  his  land 
or  puts  the  land  to  such  a  use  as  practically  to  coerce  the  adjoining  owner 
into  either  purchasing  it  at  an  exorbitant  price  or  selling  his  own  at  a  great 
sacrifice.  The  limited  power  of  eminent  domain,  heretofore  existing,  has 
often  served  to  make  the  ultimate  development  of  the  city  dependent  upon 
petty  jugglery. 

In  some  instances,  remnants  owned  by  estates  may  be  so  tied  up  as^to 
make  it  impossible  to  sell  or  develop  them. 

Until  a  concentration  of  ownership  takes  place,  the  ripening  of  the 
unearned  increment  is  held  in  abeyance;  if  the  separate  parcels  are  never 
united,  it  is  completely  stopped.  Sometimes  the  increment  which  would 
naturally  be  expected  is  never  enjoyed  by  anyone  to  its  full  extent,  and  the 
city,  which  creates  the  benefit,  reaps  none  at  all.  Even  though  the  prop- 
erty owners  are  deterred  from  realizing  upon  the  unearned  increment,  they 
are,  nevertheless,  obliged  to  pay  the  special  assessments  levied  to  pay  the 
cost  of  the  improvement.  Excess  condemnation  not  only  relieves  the  land 
owners  from  this  burden,  but  accelerates  the  city's  growth  and  prosperity 
by  insuring  the  quick  and  sure  development  of  its  thoroughfares.  (4) 

Excess  condemnation  is  of  benefit  not  only  to  the  community,  but 
frequently  to  the  private  owner  as  well.  The  Massachusetts  Committee  on 
Eminent  Domain  puts  it  thus : 

"  It  frequently  happens  that  an  owner,  the  greater  part  of  whose 
estate  is  necessarily  taken  for  a  public  work,  would  prefer  not  to  be 
left  with  the  remnant  on  his  hands,  and  if  an  opportunity  were  of- 
fered, would  voluntarily  request  the  city  to  take  the  whole  estate. 


(4)  In  making  plans  for  the  rebuilding  of  an  area  destroyed  by  earthquake,  fire, 
flood  or  storm,  the  power  to  effect  a  radical  replottage  is  often  desirable.  German 
experience  is  of  particular  interest  in  this  respect.  The  writer  is  indebted  to  Mr. 
Louis  Roth  for  the  following  paragraphs : 

"  The  ownership  of  suburban  areas  in  German  cities  is  frequently  subdivided 
into  such  small  strips  among  peasant  proprietors  that  a  complete  collation  and  re-allot- 
ment of  the  property  is  essential  to  its  development  for  urban  building  purposes. 
Legislation  has  recently  been  passed  providing  for  the  compulsory  pooling  of  such 
holdings  with  a  view  to  their  subsequent  re-distribution  into  lots  of  the  most  economi- 
cal shape  and  size  for  improvement.  (In  Prussia:  Frankfort  (1902).  Cologne  and 
Posen  (1911),  Wiesbaden  (1912)  ;  in  Baden  (1896)  ;  in  Saxony  (1900)  ;  and  in  Ham- 
burg (1892). 

"  In  Frankfort  the  re-distribution  may  be  proposed  either  by  the  municipality 
or  by  a  majority  of  the  owners  provided  they  own  more  than  half  of  the  area.  All 
the  land  affected  by  the  scheme,  including  streets  and  public  places,  is  pooled  and 
treated  as  one  tract.  Only  market  gardens,  nurseries,  parks  and  land  intended  for  the 
perpetual  use  of  the  state  may  be  excepted  from  the  scheme. 

"  In  the  re-apportionment,  the  land  required  for  streets  and  public  places  is  first 
set  off  and  allotted  to  the  city.  The  remaining  land  is  divided  into  plots  and  dis- 
tributed among  the  several  owners.  The  allotted  plots  must  be  relatively  of  the  same 
area  as  the  pooled  plots,  due  allowance  being  made  for  the  land  deducted  for  streets 
and  public  places.  Baden  and  Saxony,  unlike  Frankfort,  make  value  and  not  area  the 
basis  of  re-allotment. 

"  So  far  as  possible  the  allotted  plots  must  be  in  the  same  location  as  the  pooled 


18 

Many  people  recognize  that  there  is  less  opportunity  for  differences 
of  opinion  upon  the  question  of  market  value  of  a  whole  estate  than 
over  the  more  complicated  question  of  the  value  of  the  portion  which 
has  been  taken,  and  the  damages  to  the  remainder  by  reason  of  such 
taking;  and  hence  a  system  under  which  the  city  could  acquire  the 
whole  estate  would  be  productive  of  greater  ease  in  the  settlement  of 
damages,  and  less  likelihood  of  litigation  over  the  question  in- 
volved." (5) 

The  advantage  of  control  over  the  character  and  use  of  the  buildings 
fronting  on  an  improvement  also  justifies  excess  condemnation.  By  placing 
suitable  restrictions  when  re-selling  the  surplus  land,  the  city  will  secure 
harmony  in  the  architectural  treatment  of  streets. 

The  question  is  largely  one  of  municipal  aesthetics.  The  effect  of  an 
improvement  is  to  a  very  considerable  extent  dependent  upon  the  beauty  of 
its  surroundings.  To  secure  the  greatest  harmony  it  is  necessary  that  each 
building  be  designed  with  regard  to  the  general  final  result.  A  writer  in 
an  English  periodical  states  the  case  ably : 

/'  One  principle  which  ought  to  govern  street  architecture  is 
surely  that  consideration  should  be  had  for  neighboring  buildings. 
Street  architecture  is  social  architecture,  and  it  ought  to  conform  to 
those  rules  of  convention  by  which  men  in  society  are  governed. 
Buildings  in  a  town  street  cannot  indulge  in  the  freedom  that  is 
permissible  to  a  house  in  the  country  any  more  than  the  owner  can 
live  in  town  with  the  same  easy  disregard  of  appearances  that  he 
enjoys  when  he  is  away. 

"  Architecture  may  be  guilty  of  social  offenses  quite  as  much 
as  the  architect.  Violent  interruptions,  startling  contrasts  of  de- 
meanor, disregard  of  the  conventions  of  society,  efforts  to  shout 
down  and  overpower  his  company,  which  would  put  a  man  outside 
the  pale  in  the  civilized  world,  find  a  very  close  analogy  in  the  pre- 


plots.  Pooled  plots  which  are  so  small  that  the  allotted  plots  would  be  unsuitable 
for  improvement  are  consolidated  to  form  plots  of  convenient  size.  Where  such 
plots  are  all  pooled  by  the  same  owner,  these  mergers  are  effected  without  difficulty. 
Where  such  plots,  however,  are  pooled  by  different  owners,  each  of  the  several  owners 
concerned  must  give  his  consent  to  the  common  ownership  of  the  allotted  plot.  If 
this  consent  is  not  forthcoming,  the  city  pays  full  compensation  to  the  owners,  acquires 
title  to  the  property,  and  is  free  to  dispose  of  it  in  any  manner  it  sees  fit. 

"  The  cost  of  a  scheme  is  assessed  upon  the  owners  in  proportion  either  to  the 
benefits  conferred  upon  them  or  to  the  frontage,  area,  position  or  value  of  their 
allotted  plots.     Compensation  is  allowed  owners  for  the  following  items : 

"  1.  All  land  in  excess  of  35  per  cent,  of  the  area  taken  for  streets  or  public 
places  in  schemes  initiated  by  the  city;  in  excess  of  40  per  cent,  in  schemes  initiated 
by  the  owners. 

"  2.     Buildings  not  returned  to  their  respective  owners  in  the  allotment. 

"  3.  Any  special  value  attached  to  land  used  for  such  purposes  as  market  gardens 
or  clay  pits. 

"4.     Any  loss  of  value  that  may  be  inflicted  on  a  pooled  plot  in  the  allotment. 

"  German  cities  do  not  have  the  right  to  exercise  excess  condemnation  in  the  case 
of  street  improvements.  The  Prussian  Canal  Law  of  April  1,  1905,  providing  for  the 
construction  of  a  canal  from  the  Rhine  to  the  Weser,  however,  empowers  the  State 
to  take  the  land  within  one  kilometer  (five-eighths  of  a  mile)  of  the  canal  with  a  view 
to  intercepting  the  increased  value." 

(5)  Mass.  House  Doc.  No.  288,  Leg.  Sess.  1904,  p.  6. 


19 

tentious  buildings  that  one  often  finds  thrust  into  the  streets  and 
squares  of  London,  without  the  least  regard  for  the  style  of  the  work 
they  interrupt  or  the  scale  of  the  buildings  they  overshadow. 

"  Ordinary  houses  should  subordinate  themselves  to  buildings 
which  from  their  public  uses  or  their  architectural  importance  may 
fairly  claim  precedence.  In  fact,  there  should  be  a  '  comity  '  of 
conduct  in  architecture  as  well  as  in  society ;  any  violation  of  which 
should  be  condemned  by  public  opinion  as  in  bad  taste,  inartistic  and 
intolerable."  (6) 

As  has  been  pointed  out,  leaving  shallow  and  misshapen  remnants  in  the 
possession  of  private  owners  hampers  the  city's  economic  advancement.  As 
much  can  be  said  of  its  aesthetic  development.  Frontages  which,  if  ton- 
nected  with  adjacent  land,  would  furnish  sites  for  substantial  and  orna- 
mental structures,  are  now  occupied  by  ugly  shanties  or  billboards. 

"  A  park  surrounded  by  ramshackle  buildings  is  not  a  beautiful 
place,"  says  Mr.  Andrew  Wright  Crawford,  "  unless  it  is  so  large 
that  these  eyesores  can  be  '  planted  out.'  But  in  the  case  of  a  park- 
way, playground  or  small  city  park,  the  architecture  of  the  abutting 
buildings  cannot  be  planted  out.  The  height  and  general  design  of 
their  facades,  and  the  use  to  which  they  are  to  be  put  should  be  under 
the  control  of  the  public  *  *  ^k  •£  ^^le  park,  parkway  or  playground 
is  to  be  really  beautiful."  (7) 

Describing  the  situation  in  Boston,  the  Massachusetts  Committee  on 
Eminent  Domain  says : 

"  It  often  happens  that  the  owners  of  these  remnants,  desirous 
of  deriving  some  income,  erect  temporary  structures,  unsuited  for 
proper  habitation  or  occupancy.  Such  structures  are  frequently 
made  intentionally  objectionable,  both  in  appearance  and  in  the 
character  of  their  occupancy  for  the  purpose  of  compelling  the  pur- 
chase of  the  remnants  at  exorbitant  prices.  The  result  is  that  a  new 
thoroughfare,  which  should  be  an  ornament  to  the  city,  is  frequently 
for  a  long  period  after  its  construction  disfigured  by  unsightly  and 
unwholesome  structures  to  the  positive  detriment  of  the  public  in- 
terests. This  condition,  which  seems  inevitable  under  the  present 
system,  may  operate  to  prevent  the  undertaking  of  much  needed 
street  improvements."  (8) 

If  our  cities  are  ever  to  be  consistently  beautified,  it  is  certain  that  the 
state  will  have  to  take  a  hand  in  the  matter.  Leaving  the  unrestricted  choice 
of  structural  material,  height  of  building,  and  design  of  facade  to  the  owner, 
means  anarchy  in  architectural  treatment.  Were  it  not  for  the  failure  of 
our  courts  in  most  instances  to  recognize  aesthetic  considerations  as  a  ground 
for  exercising  control  over  property,  such  statutory  regulation  would  be  far 
preferable  to  the  indirect  and  cumbersome  procedure  of  excess  condemna- 


(6)  T.  G.  Jackson,  Journal  of  the  Society  of  Arts,  Vol.  LIII  (1904),  p.  107. 

(7)  Brief  Sur  Constitutionality  of  Excess  Condemnation,   Senate  Doc.  No.  422, 
61st  Congress,  2nd  Sess. 

(8)  House  Document,  288,  Legislative  Session  1904,  p.  5. 


20 

tion.  It  is  not  likely,  however,  that  such  regulation  can  be  made  available 
in  this  country  in  the  near  future,  nor  is  it  to  be  expected  that  architectural 
control  will  ever,  except  on  the  rarest  occasions,  be  the  primary  motive  for 
exercising  excess  condemnation — Americans  have  so  little  appreciation  for 
the  aesthetic  city. 

The  expediency  of  condemning  excess  lands  for  the  purpose  of  obtaining 
control  over  the  character  and  use  of  buildings  fronting  on  an  improvement 
should  be  weighed  against  that  of  other  means  for  accomplishing  the  same 
result — restricting  the  height  of  buildings,  segregating  buildings  according 
to  occupancy  and  prescribing  building  lines.  The  police  powers  so  exercised 
may  at  times  serve  the  same  purpose  as  excess  condemnation  and  be  resorted 
to  in  place  of  it. 

A  limitation  on  the  height  of  buildings  was  held  constitutional  by  the 
Supreme  Court  of  Massachusetts  and  the  Supreme  Court  of  the  United 
States  in  Welch  v.  Swasey,  193  Mass.,  364;  79  N.  E.  745;  214  U.  S.  91. 
The  constitutionality  of  laws  establishing  industrial  and  residential  districts 
has  thrice  been  sustained  by  the  Supreme  Court  of  California  {Ex  parte 
Qiiong  Wo,  161  Cal.  220;  118  Pac.  7lA',Ex  parte  Montgomery,  163  Cal.  457; 
125  Pac.  1070;  Ex  parte  Hadacheck,  132  Pac.  589).  The  opinion  in  Eubank 
V.  City  of  Richmond,  33  Sup.  Ct.  76,  226  U.  S.  137,  indicates  that  a  law 
establishing  building  lines  would  probably  be  held  constitutional  by  the 
Supreme  Court  of  the  United  States. 

Recoupment  through  excess  condemnation  and  the  subsequent  sale  of 
excess  lands  at  an  enhanced  value  is  justified  on  essentially  the  same  grounds 
as  the  tax  on  unearned  increment.  The  increased  value  being  a  growth  ex- 
clusively due  to  the  enterprise  and  initiative  of  the  community,  it  is  entirely 
proper  and  just  that  the  city,  and  not  the  property  owners  abutting  on  the 
improvement,  should  obtain  the  benefit.  By  practicing  recoupment,  the  city 
only  appropriates  the  added  value  resulting  from  the  improvements  made 
by  it.  Instead  of  making  a  present  of  this  increment  to  the  land  owners, 
the  city  appropriates  it'and  applies  it  on  the  cost  of  the  work,  reducing  the 
amount  to  be  collected  from  the  adjacent  property  owners  or  from  the  tax- 
payers. 

A  lot  often  has  what  may  be  called  an  integral  or  unit  value,  and,  so 
far  as  cost  is  concerned,  it  matters  little,  if  at  all,  to  the  city  whether  the 
whole  or  only  a  part  is  taken.  This  is  especially  true  of  improved  land. 
Where  part  of  a  structure  has  to  be  taken,  the  city  is  invariably  obliged  to 
pay  for  the  whole.  In  such  cases,  the  city  might  utilize  recoupment  to 
exceedingly  good  advantage.  As  the  initial  cost  of  the  improvement  would 
not  be  augmented  by  such  extra  takings,  the  sums  realized  by  their  sale 
would  be  clear  profit. 

The  widening  of  Livingston  street  in  Brooklyn  furnishes  an  excellent 
illustration  of  this  point.  In  1905  this  street  was  widened  from  50  to  80 
feet.     To  effect  the  improvement,  which  was  about  3,500  feet  long,  the  lots 


21 

on  the  southerly  side  of  the  street  were  reduced  from  a  depth  of  100  feet  to 
70  feet. 

The  awards  in  the  proceeding  amounted  to  $1,989,890.  The  land  in 
1905  was  assessed  at  $649,150;  the  buildings  at  $619,550.  The  assessment 
of  land  and  buildings  together  was  $1,268,700.  The  awards  exceeded  the 
real  estate  assessment,  a  figure  supposed  to  represent  the  fair  market  value 
of  the  property,  by  $721,190  and  the  building  assessment  by  $1,370,340. 

The  city  would  clearly  have  profited  by  excess  condemnation  in  this 
instance.  It  had  to  pay  full  damages,  if  not  considerably  more,  for  both 
the  land  and  buildings.  For  the  buildings  the  owners  were  entitled  to  full 
damages  as  the  improvement  destroyed  practically  all  the  buildings  on  the 
widened  side  of  the  street.  For  the  land,  on  the  other  hand,  they  were  not 
entitled  to  full  damages.  Even  had  there  been  no  resulting  local  benefit  from 
the  improvement,  the  70-foot  lots  fronting  on  the  new  thoroughfare  would 
have  been  worth  nearly  as  much  as  the  100-foot  lots  on  the  old  thorough- 
fare. But  the  improvement  did  confer  a  distinct  local  benefit.  In  1911 
these  lots  had  an  assessed  land  value  of  $2,073,190,  a  sum  $83,300  in  excess 
of  the  awards  made  in  1905.  Their  assessed  land  value  had  increased  219 
per  cent,  in  the  short  space  of  six  years.  (9) 

The  city,  in  making  this  improvement,  proposed  to  assess  one-fourth  of 
the  cost  upon  adjacent  property.  The  owners,  however,  obtained  a  man- 
datory act  from  the  legislature  relieving  them  from  this  "  burden."  The 
cost  of  the  widening  was,  therefore,  paid  by  the  issuance  of  thirty-year 
bonds. 

The  percentage  of  recoupment  obtained  in  making  improvements  will 
vary  with  the  amount  of  land  taken  in  excess  of  that  required,  the  general 
shape  and  size  of  the  parcels,  the  character  of  the  neighborhood  through 
which  the  thoroughfare  is  cut  and  the  honesty  and  good  judgment  with 
which  the  scheme  is  carried  out.  Judicious  expenditure  on  improvements, 
according  to  Mr.  Andrew  Young,  Valuer  to  the  London  County  Council, 
results  in  an  appreciation  in  the  value  of  land  sites  at  least  equal  to  the  sum 
expended.  In  many  instances  the  enhancement  is  very  much  greater.  By 
facilitating  the  movement  of  traffic  and  by  admitting  light  and  air  to 
areas  formerly  unsanitary,  street  improvements  increase  the  community's 
general  capacity  for  production,  promote  more  salubrious  conditions,  and 
decrease  the  necessary  cost  of  living.  These  benefits  proportionately  swell 
the  site  values  and  the  taxable  values  of  the  city.  But  it  by  no  means  follows 
that  these  increased  values  always  concentrate  on  the  land  immediately 
abutting  the  improvement.  Although  they  usually  tend  to  focus  upon  the 
adjacent  property,  and  more  especially  upon  that  fronting  the  improvement, 
they  might  be  diffused  over  a  much  larger  area,  perhaps  the  entire  city.  It 
is  this  factor  that  determines  to  what  degree  excess  condemnation  is  likely 
to  be  successful  financially.     If  the  increased  values  are  "  bunched  "  in  a 


(9)  For  table  showing  the  figures  by  lots  see  Appendix  I  A. 


22 

narrow  zone  surrounding  the  improvement,  then  recoupment  will  be  most 
satisfactory  in  its  financial  results;  but,  on  the  other  hand,  if  these  are 
greatly  scattered,  little  financial  advantage  is  to  be  expected  by  its  application. 
Realization  upon  these  diffused  values  had  better  be  left  to  general  taxation. 
Recoupment  must  be  viewed  rather  as  an  incident  in  the  achievement 
of  a  large  social  and  political  program  than  as  an  end  in  and  by  itself.  The 
rate  of  turnover  and  the  per  cent,  profit  are  tests  of  the  success  of  business 
transactions.  Although  these  furnish  criteria  for  proving  the  financial 
success  of  excess  condemnation  they  are  by  no  means  standards  that  gauge 
the  resulting  social  benefits.  Monetary  reimbursement  must  often  give  way 
to  consideration  of  other  and  greater  interests  in  the  community.  The  aims 
of  excess  condemnation  are  something  more  than  mere  pecuniary  profit. 
Its  conducement  to  civic  beauty  by  regulating  the  elevations  and  facades 
of  buildings,  its  promotion  and  encouragement  of  commercial  and  business 
development  by  affording  sites  of  shape  and  size  suitable  to  the  erection  of 
structures  comporting  with  the  potential  importance  and  use  of  the  city's 
thoroughfares,  and  the  light,  air  and  unobstructed  view  admitted  to  parks, 
parkways  and  playgrounds,  are  assets  not  subject  to  capitalization.  Their 
value  must  be  sought  in  the  increased  convenience  and  well-being  of  the 
community. 


2Z 


Chapter   II. 
Financing  London  Street    Improvements  by   Recoupment.(I) 

Prior  to  1845,  Parliament  bound  the  municipality  to  take  as  nearly  as 
possible  the  exact  area  needed  for  an  improvement.  But  in  that  year,  under 
the  Land  Clauses  Consolidation  Act,  general  rules  were  laid  down  governing 
the  taking  of  surplus  lands  in  the  case  of  improvements  authorized  by  special 
act  of  Parliament.  The  Land  Clauses  Consolidation  Act  did  not  confer  any 
blanket  power  of  excess  condemnation  upon  the  municipalities.  The  amount 
of  land  that  might  be  taken  and  the  period  of  time  during  which  it  might 
be  retained  by  the  municipality  had  in  each  instance  to  be  specified  in  the 
special  act  passed  permitting  the  municipality  to  undertake  the  improvement 
in  question.  The  statute  merely  provided  the  rules  of  procedure  to  be  fol- 
lowed after  the  passage  of  the  special  act. 

The  purpose  that  prompted  the  adoption  of  excess  condemnation  in 
England  was  frankly  admitted  to  be  that  of  recoupment.  Yet  the  conditions 
governing  its  operation  were  very  carefully  drawn  so  as  to  protect  the  rights 
of  private  property  of  both  the  owners  and  the  users  of  the  land  appropriated 
for  the  improvement. 

In  the  first  place,  a  city  undertaking  an  improvement  could  not,  unless 
the  special  enabling  act  otherwise  specified,  retain  surplus  lands  without 
sale  for  a  longer  period  than  ten  years  after  the  date  set  in  the  special  act 
for  the  completion  of  the  work.  The  money  obtained  for  excess  lands  was 
applied  to  defray  the  cost  of  the  improvement.  Superfluous  lands,  however, 
remaining  unsold  at  the  expiration  of  the  ten-year  period  became  the  property 
of  the  abutting  owners  in  proportion  to  the  extent  of  their  respective 
holdings. 

"  The  effect  of  this  rigorous  policy,"  says  Mr.  Clifford,  "  was 
to  discourage,  and  sometimes  altogether  to  prevent,  the  opening  of 
new  streets  by  local  authorities,  inasmuch  as  they  could  only  acquire 
or  retain  the  exact  quantity  of  land  necessary  for  laying  out  a 
street,  while  the  frontages,  with  their  greatly  improved  value,  re- 
mained the  property  of  private  owners.  Hence  rate-payers  bore  the 
whole  burden,  while,  apart  from  any  advantage  to  public  travel,  pri- 
vate owners  reaped  the  whole  advantage  of  such  improvements."  (2) 

The  hardship  which  such  a  condition  worked  to  the  municipality  is 
self-evident.     Under    certain    conditions,    the   period   given    within    which 


(1)  The  writer  wishes  to  acknowledge  his  indebtedness  to  Mr.  Frank  W.  Hunt 
of  London  for  valuable  corrections  and  suggestions  with  respect  to  the  contents  of 
this  chapter.  Mr.  Hunt,  who  is  one  of  the  foremost  authorities  in  England  on  the 
subject  of  recoupment,  has  for  years  been  intimately  associated  with  the  London 
County  Council  in  the  making  of  street  improvements. 

(2)  Clifford,  History  of  Private  Bill  Legislation,  Vol.  II.,  p.  550-2. 


24 

the  surplus  land  had  to  be  sold  might  not  be  sufficiently  long  to  permit  the 
unearned  increment  to  ripen.  Moreover,  the  nearer  the  expiration  of  the 
prescribed  time  limit  approached  the  more  would  the  city  be  at  a  disadvantage 
in  endeavoring  to  exercise  its  bargaining  power.  At  the  end  it  would 
probably  be  driven  to  what  was  practically  a  forced  sale.  Then,  too,  a  panic 
might  at  any  time  occur  and  render  a  sale  utterly  impossible.  The  city 
was  also  kept  from  profiting  by  the  rents  that  might  be  obtained  by  leasing 
the  land,  though  the  policy  of  renting  has  since  proved  most  expedient. 

In  1884,  however,  the  Metropolitan  Board  of  Works  (Money)  Act 
remedied  this  situation  by  empowering  the  London  Metropolitan  Board  to 
retain  until  1929  land  acquired  under  acts  passed  prior  to  January  1,  1881, 
and  until  1941  land  acquired  under  acts  passed  subsequent  to  January  1, 
1881. 

This  act,  furthermore,  provided  that  no  owner  should  be  forced  to 
give  up  part  of  any  house  or  building  if  he  were  willing  and  able  to  sell 
the  whole.  London  sought  exemption  from  this  clause,  especially  where 
improvements  merely  involved  the  taking  of  forecourts.  In  1862  this  man- 
datory provision  was  modified  so  as  to  relieve  the  metropolis  from  the  neces- 
sity of  purchasing  the  whole  where  the  desired  part  could  be  taken  without 
material  detriment  to  the  remainder. (3) 

The  Land  Clauses  Consolidation  Act,  moreover,  provides  that  persons 
of  the  working  class  displaced  by  an  improvement  had  to  be  rehoused.  No 
improvement  involving  the  demolishment  of  twenty  houses  or  more  occupied 
either  in  whole  or  in  part  by  persons  of  the  laboring  class,  in  any  one  parish, 
can  be  undertaken  unless  the  secretary  of  state  has  first  been  satisfied  that 
proper  accommodations  for  the  occupants  have  been  provided  in  other  dwell- 
ings. This  provision  has  considerably  enhanced  the  difficulty  of  carrying 
out  improvement  schemes.  At  times,  it  has  proved  very  onerous,  and  the 
amount  of  time  and  thought  expended  in  devising  suitable  arrangements  has 
been  very  great. 

"  So  far,"  says  Mr.  Andrew  Young,  Valuer  to  the  London 
County  Council,  ''  it  has  happened  that  in  each  case  where  the  Council 
has  undertaken  the  formation  of  a  new  street,  the  construction  of 
which  has  entailed  the  acquisition  in  any  one  parish  of  more  than 


(3)  A  similar  provision  exists  in  the  French,  Italian  and  Swedish  laws  on  con- 
demnation. The  Paris  act  of  1850  provides  that  the  whole  of  any  lot  of  which  it  is 
necessary  to  take  a  part  shall  be  acquired  when  the  owner  requests  it  subject  to  three 
conditions:  (1)  That  the  parcel  is  reduced  to  less  than  one-fourth  its  area;  (2)  that 
the  remnant  has  an  area  of  less  than  one-fourth  of  an  acre;  and  (3)  that  the  owner 
possess  no  immediately  adjoining  land.  (Mass.  -House  Docs.  1904,  Nos.  288  and 
1096.)  The  Itahan  act  of  1865  requires  any  special  or  immediate  benefit  conferred 
upon  the  part  not  taken  to  be  deducted  from  the  compensation  for  the  part  taken. 
Where  this  benefit  exceeds  one-fourth  of  the  award  the  owner  may  exercise  an  option. 
He  may  either  require  the  city  to  purchase  the  remnant  or  he  may  retain  it  and  re- 
quire the  city  to  pay  him  further  compensation.  This  additional  compensation  may 
not  be  less  than  three-fourths  of  the  amount  awarded  for  the  portion  expropriated 
subject  to  the  limitation  that  the  owner  recover  at  least  one-half  of  the  reasonable 
value  of  his  property.  (Royal  Institute  of  British  Architects,  Town  Planning"  Con- 
ference Transactions,  1910,  pp.  722-9.) 


25 

twenty  houses  occupied  by  persons  of  the  laboring  class,  there  has 
been  in  the  immediate  neighborhood  of  the  new  thoroughfare  ample 
vacant  accommodation  for  rehousing  the  persons  displaced,  in  con- 
sequence either  of  large  blocks  of  artisans'  dwellings  having  been 
erected  near  the  new  street  by  private  individuals  or  companies  pre- 
vious to  the  formation  of  the  street,  or  having  been  a  large  number 
of  empty  rooms  offered  for  letting  in  the  same  district.  The  Secre- 
tary of  State,  upon  the  Council  representing  to  him  that  there  was 
sufficient  vacant  suitable  accommodation  in  the  neighborhood  of  the 
new  street  for  the  persons  to  be  displaced,  has  made  full  inquiry 
with  the  result  that  the  Council  has  not  been  required  to  provide 
new  dwellings  for  such  persons. 

"If  it  were  considered  necessary  that  some  accommodation 
should  be  provided  near  the  centre  of  the  county  within  the  limits  of 
the  property  acquired,  the  receipts  from  the  sale  of  surplus  lands 
would  be  reduced  very  considerably,  and  the  net  cost  of  the  improve- 
ment correspondingly  increased.  This  would  be  the  inevitable  result, 
as  it  is  found  that  it  is  not  commercially  possible  to  erect  artisans' 
dwellings  on  valuable  commercial  land.  If  sites  are  ofifered  for  sale 
subject  to  the  restriction  to  erect  dwellings  for  the  working  class, 
it  is  found  that  the  price  realized  represents  only  a  proportion  of  the 
value  of  the  land  if  sold  without  such  restriction,  in  addition  to  the 
depreciation  of  property  immediately  adjoining. 

"  As  an  example  of  what  this  loss  may  mean,  witness  desires  to 
refer  to  the  case  of  Reid's  Brewery,  situated  at  the  junction  of 
Gray's  Inn  Road  and  Clerkenwell  Road.  This  site  contains  an  area 
of  139,400  square  feet,  and  was  purchased  at  its  fair  market  value 
as  commercial  land  at  a  cost  of  $1,000,000.  Subject  to  the  restric- 
tion as  to  the  class  of  building  to  be  erected  upon  it,  the  utmost  price 
that  could  be  given  for  it  is,  in  witness'  opinion,  $220,000,  so  that  a 
loss  was  sustained  in  this  transaction  of  $780,000.  Dwellings  to  ac- 
commodate 2,642  persons  are  being  erected  on  the  site  so  that  the  loss 
represents  as  much  as  $300  per  person  accommodated."  (4) 

The  Holborn-Strand  improvement  alone  involved  the  demolition  of  600 
buildings,  and  the  displacement  of  3,700  persons  of  the  working  class  by  the 
formation  of  the  street  itself,  and  an  additional  3,172  by  the  clearance  of  the 
unsanitary  area  in  the  neighborhood  of  Clare  Market.  Just  what  the  hous- 
ing policy  has  cost  London  in  its  sum  total  is  not  known,  but  in  this  single 
instance  it  amounted  to  $1,500,000. 

The  acquisition  of  leasehold  and  the  compensation  for  injured  trade 
interests  have  proved  heavy  charges  on  the  Council.  The  Massachusetts 
Committee  on  Eminent  Domain  thoroughly  discussed  this  point : 

"  Whenever  a  public  authority  takes  land  by  compulsory  powers 
under  the  Lands  Clauses  ConsoHdation  Act,  1845,  every  occupant  of 
the  property,  whether  freeholder  or  leaseholder,  who  has  been  carry- 
ing on  a  business  on  the  property,  is  entitled  to  compensation,  if  he 
can  show  that  dispossession  will  impair  the  good-will  of  his  business. 
Good-will  is  the  probability  of  the  continuance  of  a  business  con- 
nection.    If  a  business  is  of  a  city  wide  character,  or  is  one  which 


(4)  Royal  Commission  on  London  Traffic,  1906,  vol.  Ill,  p.  316. 


20 

consists  of  orders  taken,  or  patronage  derived,  from  a  widely  ex- 
tended area,  a  compulsory  change  of  trade  premises  impairs  the  good- 
will very  little.  If,  in  addition,  convenient  premises  can  be  acquired 
in  the  immediate  neighborhood  of  the  premises  taken,  the  impair- 
ment of  the  good-will  will  be  merely  nominal,  and  the  owner's  lawful 
claim  to  compensation  will  be  only  in  respect  of  any  reasonable  ex- 
penses which  the  taking  of  equally  convenient  new  premises  has  ren- 
dered necessary.  There  will  be  practical  destruction  of  the  good- 
will only  in  those  cases  of  retail  trade  and  local  trade  which  depend 
entirely  on  neighboring  customers,  and  where  no  suitable  premises 
can  be  found  in  the  locality  within  which  the  business  connection  ex- 
tends. And  yet,  in  practice,  the  juries'  awards  for  compensation  are 
practically  always  based  on  the  supposition  of  complete,  or  nearly 
complete,  destruction  of  the  good-will.  The  term  "  impairment  of 
good-will  "  was  not  once  used  in  the  voluminous  testimony  on  the 
subject  of  compensation  for  good-will  taken  in  1894  by  the  select 
committee  of  the  House  of  Lords.  All  of  the  witnesses  spoke  of  the 
capitalized  value  of  good-will,  stating  that  ordinarily  it  was  four 
years'  profits,  but  that  sometimes  it  was  taken  at  three,  five,  or 
six  years'  profits.  Of  course,  the  witnesses  stated  repeatedly  that 
oftentimes  the  person  dispossessed  merely  moved  around  the  corner, 
or  to  the  other  side  of  the  street." (5) 

Until  the  present  all  leaseholds  seem  to  have  been  purchased  outright, 
whether  long-time  or  short-time.  It  has,  however,  been  suggested  that  a 
large  sum  might  be  saved  were  only  the  long  leaseholds  acquired  and  the 
short  leaseholds  permitted  to  run  out.  In  this  way,  the  Council  would  not 
only  spare  the  cost  of  the  short-time  leaseholds,  but  also  the  amount  that 
it  would  otherwise  have  to  pay  the  holders  of  these  leases  for  injured  trade 
interests.  It  has  been  objected,  however,  that  this  would  involve  a  consider- 
able loss  of  interest,  for  many  years  in  some  instances,  on  the  capital  sunk 
in  the  freeholds  until  the  leaseholds  had  expired.  Those  who  favor  this 
policy  reply  that  the  rents  obtained  in  the  meantime  would  sufficiently  com- 
pensate for  all  interest  charges  thus  incurred. 

Trade  interests  may  be  injuriously  affected  by  an  improvement  either 
by  the  displacement  and  removal  of  large  numbers  of  the  working  class,  or  by 
the  diversion  of  traffic  from  old  streets  to  the  one  improved. 

The  English  courts  have  limited  damages  in  the  case  of  injuriously 
affected  trade  interests  to  the  following  cases : 

1.  The  damage  or  loss  must  result  from  an  act  made  lawful  by  the 
statutory  powers  of  the  promoters. 

2.  The  damage  or  loss  must  be  such  as  would  have  been  actionable, 
but  for  statutory  powers. 

3.  The  damage  or  loss  must  be  an  injury  to  lands,  and  not  a  personal 
injury  or  an  injury  to  trade. 

4.  The  damage  or  loss  must  be  occasioned  by  the  construction  of  the 
authorized  works  and  not  by  their  user.  (6) 

(5)  H.  R.  Meyer,  Mass.  House  Doc.  288,  Legislative  Session,  1904,  p.  72. 

(6)  P.  J.  Edwards,  History  of  London  Street  Improvements,  p.  20. 


27 

Although  there  has  never  been  any  statutory  authority  for  such  a 
practice,  the  Council  has  always  allowed  the  land  owner,  in  cases  of  com- 
pulsory purchase,  ten  per  cent,  in  addition  to  a  fair  market  price.  This 
additional  allowance  is  considered  by  some  authorities  in  the  nature  of  a 
solatium  to  the  owner  for  his  loss  of  future  increment;  and  by  others  as  a 
compensation  for  the  expense  incurred  by  the  owner  in  the  reinvestment  of 
his  capital.  (7) 

**  It  may  well  be  mentioned,"  says  Mr.  Edwards,  "  that  the  acqui- 
sition of  property  always  occupies  a  considerable  amount  of  time. 
The  negotiations  and  the  due  conveyance  of  the  property  necessarily 
occupy  a  lengthy  period.  Much  as  the  Council  may  strive  to  press 
the  negotiations  to  a  successful* issue  the  same  spirit  of  expedition 
does  not  always  characterize  the  action  of  the  claimants  and  their 
agents.  The  public  observing  that  the  houses  are  not  removed  think 
that  the  Council  is  responsible  for  the  delay,  with  the  result  that 
numerous  complaints  ot  dilatoriness  are  frequently  made  when  the 
Council  has  been  doing  its  utmost  to  carry  out  the  improvement  with 
expedition.'' 

"  Under  the  Metropolitan  Board,  it  was  customary  when  an 
owner  refused  the  amount  fixed  as  the  maximum  limit  for  negotia- 
tion, for  the  Board  to  affix  its  seal  to  a  formal  offer  which  would  be 
served  upon  the  owner,  and  if  he  did  not  accept  this,  his  claim  was 
settled  by  the  award  of  an  arbitrator  or  by  the  verdict  of  a  jury,  such 
jury  being  summoned  and  empanelled  by  the  Sherift  who  would  pre- 
side at  the  inquiry.  The  Land  Clauses  Consolidation  Act  provides 
that  if  the  compensation  claimed,  or  offered,  shall  exceed  £50,  and 
if  the  party  claiming  compensation  desires  to  have  the  sum  settled 
by  arbitration,  and  signifies  such  desire  by  notice  in  writing  to  the 
promoters  of  the  undertaking  before  they  have  issued  their  warrant 
to  the  sheriff  to  summon  a  jury,  the  compensation  shall  be  settled 
by  arbitration  accordingly.  The  act  further  prescribes  that  unless 
both  parties  shall  concur  in  the  appointment  of  a  single  arbitrator, 
each  party,  on  the  request  of  the  other  party,  shall  nominate  and 
appoint  an  arbitrator,  to  whom  such  disputes  shall  be  referred,  and 
such  arbitrators  shall  nominate  and  appoint  an  umpire  to  decide  on 
any  such  matters  on  which  they  shall  differ,  or  which  shall  be  re- 
ferred to  him  under  the  provisions  of  the  act  of  1845,  or  of  the 
special  act  authorizing  the  improvement.  Procedure  before  an  arbi- 
trator or  a  jury  necessarily  entailed  a  certain  amount  of  delay,  and 
in  a  few  cases  where  it  was  necessary  for  the  Board  to  obtain  pos- 
session of  lands  before  an  agreement  had  been  come  to,  or  an  award 
made,  or  verdict  given,  for  the  purchase  money  or  compensation  to 
be  paid  by  the  Board  in  respect  of  such  lands,  advantage  was  taken 
of  the  provisions  of  the  85th  section  of  the  act  of  1845,  which 
authorizes  promoters  to  enter  upon  lands  before  purchase  upon 
depositing  in  the  bank  by  way  of  security  either  the  amount  of  pur- 
chase money  or  compensation  claimed  in  respect  of  such  lands,  or 
such  a  sum  as  shall,  by  a  surveyor  appointed  by  two  justices,  be  de- 
termined to  be  the  value  of  such  lands,  the  promoters  also  being  re- 


(7)  Frank   W.    Hunt,    "  The    Tendency   of    Recent    Modifications    of   the    Lands 
Clauses  Act,"  in  Transactions  of  the  Surveyors'  Institution,  1912,  Vol.  XLIV,  p.  117. 


28 

quired  to  give  a  bond  in  a  penal  sum  equal  to  the  sum  deposited  in 
the  bank.  Full  advantage  of  this  power,  however,  has  not  been  taken 
by  the  Board,  as  procedure  under  the  85th  section  is  somewhat  costly, 
inasmuch  as  the  promoters  are  required  to  pay,  in  addition  to  the 
amount  of  purchase  money  or  compensation,  interest  at  the  rate 
pound  5  per  cent,  per  annum  from  the  time  of  entering  on  the  lands 
until  the  purchase  money  or  compensation  shall  be  paid  to  the  claim- 
ant."  (8) 

As  the  general  provisions  of  the  Land  Clauses  Consolidation  Act  have 
always  been  incorporated  into  every  special  act  authorizing  an  improve- 
ment, this  describes  the  procedure  in  vogue  to-day. 

Experience  in  London  has  shown  that  owners  of  property  are  tempted  to 
make  arrangements  in  the  way  of  new  lettings  or  improvements,  as  soon 
as  it  is  known  that  an  improvement  is  contemplated  along  their  holdings,  so 
as  to  fleece  the  city.  In  some  instances,  the  money  thus  exacted  has  enor- 
mously increased  the  cost  of  the  work.  An  endeavor  has  been  made  by  the 
Council,  however,  to  meet  cases  of  this  kind  by  refusing  compensation  for 
improvements  erected  for  the  purpose  of  obtaining  increased  damages. 

The  Council  has  on  several  occasions  attempted  to  enforce  this  rule, 
but  in  only  one  case  has  it  been  able  to  produce  sufficient  proof  to  receive 
a  favorable  verdict  from  the  jury.  That  new  interests  have  been  created  for 
the  purpose  of  obtaining  increased  compensation  there  seems  no  doubt,  but 
to  prove  legally  that  this  is  the  prompting  motive  is  very  difficult.  It  has 
been  suggested  that  if  London  should  adopt  a  comprehensive  scheme  of 
street  improvements  to  be  carried  out  over  a  long  period  of  years,  it  would 
be  necessary  to  keep  such  plan  wholly  confidential  and  closed  to  the  public, 
lest  private  land  speculation  and  the  creation  of  new  interests  should  deprive 
the  city  of  all  recoupment.  (9) 

The  City  of  London,  by  having  to  apply  to  Parliament  for  a  special  act 
in  each  case  to  enable  it  to  undertake  improvements,  has  been  unfavorably 
affected  in  recouping  its  outlay.  Where  buildings  have  been  demolished 
by  their  owners  with  a  view  to  rebuilding,  or  devastated  by  fire,  areas  for 
projected  improvements  might  have  been  obtained  by  the  council  at  small 
cost.  But  the  tardy  process  of  special  legislation  has  robbed  the  city  of  this 
advantage. 

"  The  Council's  standing  orders,"  says  Mr.  Edwards,  "  require 
committees  to  bring  up  schemes  involving  applications  to  Parliament 
not  later  than  the  first  meeting  of  the  Council  in  June,  and  it  is 
provided  that  no  report  recommending,  an  application  to  Parliament 
for  further  powers  shall  be  adopted,  unless  with  a  view  to  an  applica- 
tion in  the  session  of  Parliament  next  ensuing  upon  the  date  of  the 
report,  and  unless  the  report  be  adopted  before  the  Council  rises  for 
the  summer  vacation.  This  being  so,  nearly  if  not  quite  twelve 
months  must  elapse  between  the  date  of  the  Council's  decision  and 


(8)  Edwards,  History  of  London  Street  Improvements,  p.  174.     Ibid,  p.  19. 

(9)  Andrew  Young,  Royal  Commission  on  London  Traffic,  Vol.  Ill,  317. 


29 

the  time  of  obtaining  the  Act  of  Parhament ;  and  the  effect  of  this  is 
that  the  opportunity  for  the  Council  to  acquire,  on  favorable  terms, 
vacant  land  or  premises  about  to  be  rebuilt,  is  almost  invariably  lost. 
Several  cases  have  occurred  in  which,  if  the  Council  had  possessed 
compulsory  powers  of  purchase,  necessary  street  improvements  could 
have  been  effected  at  comparatively  small  cost  to  the  Council."  (10) 

In  spite  of  these  unfavorable  circumstances,  recoupment  in  London  has 
on  the  whole  proved  eminently  successful,  though  excess  takings  have  usually 
not  been  so  much  for  profit  as  incidental  to  the  economical  and  convenient 
execution  of  public  improvements. 

During  the  period  between  1855  and  1889,  the  Metropolitan  Board  of 
Works  exercised  the  power  of  excess  condemnation  in  45  street  proceedings. 
The  aggregate  gross  cost  of  these  improvements  was  $76,797,445.  Of  this 
amount,  $26,230,530  was  recouped  through  the  sale  of  surplus  lands.  The 
total  net  cost  was,  therefore,  $50,566,915.  In  other  words,  the  monies 
received  from  recoupment  amounted  to  34  per  cent,  of  the  total  gross  cost, 
or  52  per  cent,  of  the  total  net  cost. 

In  the  period  between  1889  and  1913,  the  County  Council  exercised  the 
power  of  excess  condemnation  also  in  45  street  proceedings.  The  aggre- 
gate gross  cost  of  these  improvements  was  $44,246,125.  Of  this  amount 
$23,511,740  was  recouped  through  the  sale  of  surplus  lands,  reducing  the 
total  net  cost  to  $20,734,383.  In  other  words,  the  monies  received  from 
recoupment  amounted  to  53  per  cent,  of  the  total  gross  cost  and  to  113  per 
cent,  of  the  total  net  cost. 

The  total  gross  cost  of  the  street  improvements  effected  in  the  entire 
period  between  1855  and  1913  with  the  aid  of  excess  condemnation  was 
$121,043,570.  Through  a  recoupment  of  $49,742,270  the  total  net  cost  of 
these  improvements  was  reduced  to  $71,301,300.  The  recoupment  amounted 
to  41  per  cent,  of  the  total  gross  cost  and  to  70  per  cent,  of  the  total  net 
cost. 

On  July  1,  1913,  the  Council  was  executing  13  street  improvements 
with  the  aid  of  excess  condemnation.  These  improvements  had  an  estimated 
gross  cost  of  $10,678,525.  The  expected  recoupment  was  $4,111,200,  or  38 
per  cent,  of  the  gross  cost,  reducing  the  estimated  net  cost  to  $6,567,325. 

The  per  cent,  recoupment  obtained  is  proof  that  the  power  of  excess 
taking  has  in  the  majority  of  improvements  been  exercised  only  incidentally 
for  pecuniary  profit.  In  36  of  the  90  improvements  in  which  it  was 
utilized  between  1855  and  1913,  the  recoupment  reahzed  was  less  than  10  per 
cent,  of  the  gross  cost;  in  16  between  11  and  20  per  cent. ;  and  in  14  between 
21  and  30  per  cent.  In  66  improvements,  therefore,  the  recoupment  was 
less  than  30  per  cent.  In  only  24  improvements  did  it  exceed  30  per  cent. 
In  12  of  these  it  was  between  31  and  40  per  cent.;  in  six  between  41  and 
50  per  cent. ;  in  three  between  51  and  60  per  cent. ;  and  in  three  over  70  per 

(10)  Edwards,  History  of  London  Street  Improvements,  p.  165. 


^10)  Edwards,  History  of  London  Street  Improvements,  p 


30 

cent.  In  these  latter  three,  the  recoupments  realized  were  72  per  cent.,  84 
per  cent.,  and  116  per  cent,  respectively.  (11) 

The  small  per  cent,  recoupment  obtained  in  most  of  the  proceedings  is 
indicative  not  so  much  of  the  financial  success  or  failure  of  excess  condemna- 
tion as  of  the  comparatively  small  quantity  of  additional  lands  taken  over 
the  absolute  minimum  required  for  improvements.  (12) 

In  the  one  instance  in  which  the  recoupment  exceeded  the  gross  cost, 
the  Northumberland  Avenue  Improvement  (completed  1876),  the  street  was 
cut  through  a  central  area,  the  ground  of  which  was  not  built  upon  and 
which  at  that  time  did  not  have  a  business  value.  The  operation,  therefore, 
did  not  involve  any  compensation  for  disturbed  trade  interests.  More- 
over, all  the  land  seems  to  have  been  bought  from  one  owner,  thus  saving 
the  expense  of  having  to  negotiate  with  many  petty  holders.  The  gross  cost 
of  the  undertaking  was  $3,557,455.  The  recoupment  obtained  was 
$4,156,550,  leaving  thus  a  surplus  of  $599,095,  or  a  net  profit  of  16  per 
cent.  The  large  sum  realized  was  due  to  the  eagerness  with  which  the  excess 
land  was  acquired  for  the  erection  of  large  hotels  and  other  handsome 
buildings  fronting  the  avenue. 

The  most  notable  instance  of  recouping  in  recent  years  is  the  Holborn- 
Strand,  or  Kingsway  improvement.  It  was  considered  for  many  years  by 
the  Council,  but  was  not  undertaken  until  1899.  The  total  area  of  the 
property  dealt  with  was  28  acres,  of  which  12^  were  dedicated  to  the  public 
in  the  form  of  new  streets,  leaving  15^  acres  available  for  building  sites. 
The  length  of  the  street  is  1,100  yards;  the  width  100  feet.  It  was  at  first 
intended  to  make  the  new  thoroughfare  only  90  feet  wide,  but  this  was 
changed  upon  the  following  recommendation  of  the  Improvements  Com- 
mittee : 

''  It  will  be  noticed  that  we  now  recommend  that  the  width  of  the 
street  should  be  100  feet,  and  not  90  feet  as  suggested  in  our  report 


(11)  For  table  showing  data  for  separate  improvements  see  Appendix  I  B. 

(12)  The  per  cent,  recoupment  in  London  compares  very  favorably  with  that 
in  Paris.  Between  1852  and  1869,  Paris  laid  out  56.25  miles  of  new  streets  having 
a  total  surface  of  2,725,000  square  yards.  The  area  acquired  in  addition  to  this  in 
the  way  of  remnants  and  excess  takings  was  much  larger.  The  gross  cost  incurred 
in  the  construction  of  these  streets  totaled  $259,400,000,  the  net  cost  $193,200,000.  The 
recoupment  was,  therefore,  $66,200,000,  or  25  per  cent,  of  the  gross  cost  and  34  per 
cent,  of  the  net  cost. 

The  reason  for  the  smaller  per  cent,  recoupment  in  Paris  is  to  a  large  degree 
due  to  the  areal  limitations  on  excess  takings.  The  law  specifically  restricts  takings 
to  residues,  which,  on  account  of  their  shape  and  size,  are  unsuitable  for  wholesome 
buildings.  To  obtain  the  most  desirable  union  of  a  parcel  with  adjoining  land,  the 
law  provides  for  a  careful  appraisal  of  its  value  to  the  owner  of  such  neighboring 
land  as  may  have  been  selected  for  the  combination.  Should  he  fail  to  purchase  it 
at  this  price  within  a  week,  the  city  may,  if  it  so  chooses,  condemn  his  property  for 
the  purpose  of  uniting  it  to  the  remnant,  and  then  re-sell  the  whole.  These  remnants 
are  readily  salable  as  the  adjoining  owners  usually  desire  to  secure  the  frontage  on  the 
new  street. 

Since  the  establishment  of  the  republic,  it  has  been  the  policy  of  the  state  to  limit 
the  size  of  excess  takings.  Formerly  areas  of  5,000  or  6.000  square  feet  were  appro- 
priated rather  frequently,  but  at  present  the  Council  of  State  looks  askance  at  takings 
exceeding  650  square  feet  in  area.     (Mass.  House  Doc.  1904,  Nos.  288  and  1096.) 


II.  IMPROVEMENTS  EFFECTED  BY  THE  LONDON  COUNTY  COUNCIL. 
1889-1913.(2) 


Actual  or  Actual  or          Actual  or 

Estimated  Estimated        Estimated 

Gross  Cost,  (a)  Recoupment.      Net  Cost. 


Length 
of  Im- 
provement. 


Average 
Width 
of  New- 
Street  or 
Widened 
Thorough- 
fare. 


Per  Cent. 

of  Re- 
coupment 
to  Gross 
Cost. 


Fortress  road  36,597 

Evelyn  street 71,650 

Sandys   tow  to   Bishopsgates 81,500 

Ben   Johnson   road 7,100 

Blockstock  road  16,427 

Holloway  road  8,950 

Old  street  at  Goswell  road 193,000 

Tower  Bridge  southern  approach  (Tower  Bridge 

road)    436,000 

Long  lane  207,400 

Wandsworth  road  63,000 

Battersea  Park  road 20,930 

York  road   87,150 

Albert  embankment    37,100 

Holborn  to  Strand  (Kingsway  and  Aldwych) . .  4,866,000 

Clare   Market   clearance   scheme 397,900 

High   Holborn,   Nos.   107-113 29.850 

Southampton  row  between  High  Holborn  and 

Theobald's  road    272,000 

Tower  Bridge  northern  approach   (Tower  Hill 

to    Prescot    street) 414,000 

Mansell    street    (continuation    of    the    northern 

approach  to  the  Tower  Bridge) 113.675 

Nine    Elms    lane 156,250 

Lewisham    High   road,   Loampit   Hill,    Loampit 

Vale,  Lee  High  road 111,030 

Bostall  Hill,  Basildon  road,  McLoCd  road,  and 

Knee  Hill   10,900 

High  street  and  Lewisham  road 20,600 

South  Lambeth  road,  near  Vauxhall  Park 15,700 

Fulham  Palace  road.  High  street,  and   Church 

street    137,226 

Coldharbour  lane  to  Norwood  road 51,450 

Lea  Bridge  road  at  Lower  Clapton  road 22,600 

Essex  road    33,450 

Camberwell  New  road 72,000 

Malpas  road,  Brockley  Rise.  Brockley  road,  and 

Stanstead  road    78.600 

Catford   Bridge    59.000 

Battersea  Bridge  road  and  Battersea  Park  road.  23.250 
Parker's  row,  Jamaica  road.  Union  road,  Evelyn 

street,    Blackhorse    Bridge,    Deptford    Creek 

Bridge,  Bridge  street  and  Church  street 151,000 

High  street  and  Highgate  Hill 16,500 

Woolwich  road    62,850 

Belvedere  road  62,050 

Putney  Bridge  road 58,200 

Norwood  road  to  Effra  road 30,000 

Queens  road,  Deptford 27.500 

Southgate  road  and  Green  lanes 24,700 

Dalston  lane  and  Graham  road 30,300 

Stanstead  road  to  Catford  road 45.650 

Mare  street  and  Upper  Clapton  road 47,690 

East   India   Dock  road 98.000 

Norton  Folgate   42,500 

Grand  Total  8.849,225 

Changing  i   into  $  $44,246,125 


£ 
7,093 
4,750 
28,074 
960 
8,877 
400 
28,500 

42,000 

17,000 

8,000 

500 

7,000 

3,100 

4,091,800 

181,400 

13,200 

110,000 


10,900 
10,400 


200 

50 

3.000 

36,624 

2,720 

500 

200 

15,500 

700 

1.500 

2.S0 


2,500 

6,000 

1.400 

5,000 

2,000 

100 

2,000 

300 

400 

50 

2.100 

4,000 

16.000 


£ 
29,504 
66,900 
53,426 
6,140 
7,550 
8,550 
164,500 

394,000 
190,400 
55,000 
20,430 
80,150 
34,000 
774,200 
216,500 
16,650 

162,000 


102,775 
145,850 


10,700 
20,550 
12,700 

100,602 
48,730 
22,100 
33,250 
56,500 

77.900 
57.500 
23.000 


148,500 
10,500 
61,450 
57,050 
56,200 
29,900 
25,500 
24.400 
29,900 
45,600 
45.590 
94.000 
26,500 


450 
1,000 
500 
250 
400 
300 
900 

360 
1,100 

800 

400 
3,500 

450 
3,300 

'140 


1,100 
2,800 

4,950 

4,500 
1,700 

430 

Less  than 

2,600 

2,825 

500 

600 

270 

5.490 

890 

1..S00 


7,910 

830 
5,500 

715 
2,980 
3,845 

710 
1,905 

790 
3,495 

790 
1,985 

110 


54 

50-60 

54 

50-60 

50 

50 

50-60 

60 

50 
50 
45-50 


45-60 

50-67 

50 

60 

40-54 

40-50 

50-60 

SO 

SO 

SO 

55-60 

70 

70 


2 

0.2 

2 

27 

5 

2 

0.6 
21 


2 
36 
2 
8 
3 

0.3 
7 
1 
1 
0.1 


,146,877 


76,i 


$23,511,740        $20,734,385 


(2)  Royal  Commission  on  London  Traffic,  Vol.  Ill,  Appendix  5,  pp.  110-113;  and  Reports  of  London  Traflfic  Branch,  1908,  pp.  140— 
143;  1909.  pp.  187-189;  1910,  pp.  162-164;  1911,  pp.  158-160;  1912,  pp.  131-133;  1913,  pp.  112-113. 

(a)  In  some  instances  the  cost  has  been  estimated  as  the  proceeding  was  carried  out  in  connection  with  other  improvements  or 
clearances.    The  recoupment,  too,  in  certain  cases  has  been  estimated,  as  all  the  surplus  lands  have  not  yet  been  sold. 


33 

to  the  Council  in  October,  1895,  and  we  think  it  well  to  state  our 
reasons  for  this  decision.  If  the  street  were  made  90  feet  wide, 
exactly  the  same  properties  would  have  to  be  acquired  as  for  the  100 
foot  street,  but  there  would  be  added  to  the  area  of  the  wider  street 
about  16,475  square  feet  of  land,  which,  in  the  case  of  the  narrower 
street,  would  be  sold  as  surplus  land.  But  the  increased  width  of  the 
street  would  enhance  the  value  of  the  remaining  surplus  land  to  an 
amount  greater  than  the  value  of  the  additional  land  added  to  the 
public  way,  and  consequently  there  would  be  a  net  saving  by  widen- 
ing the  street  to  100  feet.  It  is  estimated  that,  after  taking  into  ac- 
count the  additional  paving  works  involved,  the  100-foot  street 
would  be  £18,400  ($92,000)  cheaper  than  the  90  foot.  The  estimated 
saving  in  the  cost  of  the  wider  thoroughfare,  together  with  the  fact 
that  the  wider  the  street  the  greater  will  be  the  extent  of  the  better- 
ment area,  has  induced  us  to  recommend  that  the  street  should  be 
100  feet  wide."(13) 

The  operation  involved  the  demolition  of  600  buildings  and  the  dis- 
placement of  3,700  persons  of  the  working  class.  The  clearance  of  the 
unsanitary  areas  in  the  neighborhood  of  Clare  ^larket,  which  was  included 
in  the  scheme,  displaced  an  additional  3,172  working  people.  Provision  for 
rehousing  all  these  people  had  to  be  made.  Furthermore,  disturbed  trade 
and  other  interests,  numbering  1,500  in  all,  had  to  be  compensated.  No 
satisfactory  figures  as  to  the  relative  sums  paid  in  compensation  for 
injuriously  affected  business  interests,  cost  of  works,  land,  etc.,  have  been 
obtained,  but  the  total  gross  cost  of  the  entire  improvement,  which  was  just 
recently  completed,  is  about  $24,330,000.  Through  a  recoupment  of 
$20,459,000  the  net  cost  has  been  reduced  to  $3,871,000.  The  recoupment  is, 
therefore,  84  per  cent,  of  the  total  gross  cost.  The  Council  has  not  yet  dis- 
posed of  all  its  surplus  land,  but  since  the  prices  realized  on  the  parcels  sold 
are  in  excess  of  those  at  first  expected,  there  is  sanguine  prospect  that  the 
net  cost  of  the  improvement  will  be  less  and  the  per  cent,  of  recoupment 
correspondingly  greater,  than  that  stated. 

The  experience  of  London  has  been  that  it  is  more  economical  to  form 
new  thoroughfares  than  to  widen  old  ones.  The  accompanying  statement 
shows  that  the  recoupment  obtained  in  the  case  of  thoroughfares  widened 
by  the  Metropolitan  Board  was  only  24  per  cent,  of  the  gross  cost  of  the 
improvement,  and  32  per  cent,  of  the  net  cost,  while  in  the  formation  of  new 
thoroughfares  it  was  48  per  cent,  of  the  gross  cost  and  88  per  cent,  of  the  net 
cost.  When  an  old  street  is  widened,  the  Council  has  the  advantage  of 
merely  one  frontage,  namely,  that  on  the  side  of  the  thoroughfare  which  is 
set  back.  Since  the  increased  value  on  the  other  side,  which  is  equal  to  that 
on  the  one  taken,  accrues  to  the  owners  of  those  lots,  recoupment  is  realized 
to  the  extent  of  only  one-half  of  what  might  otherwise  be  obtained,  and 
then  only  by  favoring  certain  property  owners  at  the  expense  of  others. 
The  Council  has  attempted  to  reach  these  values  by  the  imposition  of  special 

(13)  Edwards,  History  of  London  Street  Improvements,  p.  256. 


34 

assessments,  or  betterments,  as  they  are  called  in  England.  New  streets, 
moreover,  are  usually  laid  out  in  sections  where  not  so  large  a  proportion  of 
the  property  value  is  devoted  to  business  purposes  as  is  the  case  in  widened 
ones.  They  are  carried  through  property  of  a  cheaper  class,  thereby  in- 
volving a  minimum  outlay  for  injuriously  affected  trade  interests. 

"  The  expense,"  says  an  official  report,  "  of  widening  an  old 
street — heavy  as  it  may  be — is  usually  less  uncertain  in  amount,  and 
entails  a  smaller  initial  outlay,  but  no  general  rule  can  be  laid  down 
as  to  the  comparative  expediency  of  widening  and  new  construction, 
since  the  value  of  property  varies  greatly  in  different  parts  and  so 
much  depends  upon  the  extent  of  the  improvement,  the  character  of 
the  neighborhood,  the  interests  that  have  to  be  acquired,  the  prospects 
of  development  and  other  considerations  peculiar  to  the  local- 
ity."  (14) 

To  offset  the  larger  initial  outlay  for  land  and  the  longer  period  elapsing 
before  the  recoupment  matures,  it  is  said  that  new  streets  have  more  in 
their  favor  when  it  comes  to  facilitating  ventilation  and  improving  unsanitary 
areas  than  widenings.  By  the  construction  of  new  streets,  the  traffic  also 
gains  by  being  able  to  use  not  only  the  area  of  the  new  street,  but  also  that 
of  existing  thoroughfares  which  run  parallel  to  it,  while  in  widening  a 
thoroughfare  the  gain  is  merely  that  of  the  land  added  to  the  highway. 

The  total  length  of  the  portions  of  old  streets  widened  and  the  portion 
of  new  streets  constructed  between  1889  and  1913  was  14.588  miles. 

In  figuring  the  amount  of  recoupment,  the  Council  does  not  seem  to 
take  into  account  charges  for  interest  on  outlay  for  surplus  lands  held  pend- 
ing the  maturing  of  the  unearned  increment.  To  arrive  at  this  sum  it  would 
be  necessary  to  know  what  would  have  been  the  cost  of  the  improvements 
had  not  excess  takings  of  land  been  made.  Charges  of  this  nature,  in  order 
to  obtain  the  net  recoupment,  can  only  be  figured  on  the  difference  in  the 
gross  cost  of  improvement  by  excess  condemnation  and  that  of  minimum 
necessary  taking,  since  the  interest  on  the  least  possible  cost  of  a  work  cannot 
properly  be  subtracted  from  the  gross  recoupment,  as  it  is  identically  the 
same  whether  or  not  excess  lands  be  acquired.  If  this  difference  be  large 
and  if  the  period  of  the  maturity  of  the  unearned  increment  be  long  and  the 
gross  recoupment  small,  the  compound  interest  might,  of  course,  entirely 
wipe  out  the  gross  recoupment,  and  even  more,  changing  what  might  have 
been  an  apparent  profit  into  a  deficit.  But  in  conditions  the  reverse  of  these 
the  unearned  increment  as  it  accrues  will  more  than  offset  these  charges. 
Thus,  in  the  Holborn-Strand  improvement  it  is  estimated  that  the  ultimate 
net  cost  of  the  work  was  more  than  $5,000,000  less  than  would  have  been 
the  case  if  the  Council  had  merely  acquired  the  properties  cut  up  by  the  new 
street.  Obviously,  the  realization  of  the  unearned  increment  in  this  case 
could  have  been  held  in  abeyance  a  long  time  without  wiping  out  this  large 

(14)  Report  of  the  London  Traffic  Branch  of  Board  of  Trade,  1908,  p.  9. 


35 

saving.  Allegations,  therefore,  to  the  effect  that  interest  charges  eat  up  the 
reimbursements  obtained  by  the  sale  of  surplus  land  should  be  accepted  with 
considerable  reserve,  since  those  making  them  do  not  appear  to  consider 
the  difference  in  the  two  costs  as  the  basis  of  their  reckoning. 

The  Council,  having  found  that  a  greater  return  is  obtained  from  the 
ground  rents  than  that  realized  from  the  sale  of  surplus  lands,  is  more  and 
more  retaining  possession  of  the  freeholds.  In  1890  the  estimated  value  of 
lands  held  was  $11,215,000;  in  1912  it  was  $35,581,690.  The  value  of  the 
surplus  land  held  in  1912  was,  in  other  words,  almost  treble  that  held 
in  1890.  The  magnitude  of  these  holdings  is  emphasized  by  the  fact  that 
their  value  is  now  the  second  largest  item  used  in  the  accounts  of  the  London 
County  Council  to  reduce  its  total  debt  to  its  net  debt. 

As  soon  as  a  new  street  is  completed  and  opened  for  traffic  the  surplus 
land,  after  being  duly  surveyed  and  replotted,  is  ready  for  disposal.  This 
task  is  in  the  hands  of  the  Improvements  Committee.  Its  proceedings  are 
governed  by  an  order  of  reference  which  empowers  it  to  enter  into  contracts 
for  the  sale  or  lease  of  land,  subject,  of  course,  to  the  Council's  sanction. 
In  the  first  instance,  unless  the  Committee  is  otherwise  directed,  all  property 
sold  or  let  must  be  submitted  to  public  auction.  Prior  to  the  auction,  a 
reserve,  fixed  by  the  Committee  upon  the  recommendation  of  the  Valuer,  is 
put  on  each  lot.  These  reserves  are  placed  in  sealed  envelopes  and  are  not 
opened  unless  substantial  offers  are  received  at  the  auction.  In  the  case  of 
lettings  by  private  contract,  it  is  the  practice  to  consider  such  offers  as  are 
received  together  with  the  valuer's  estimates.  No  information  at  all  is  given 
as  to  the  prices  which  the  Council  would  be  advised  to  accept,  unless  it  is 
perfectly  clear  to  the  Committee  that  the  offers  are  made  in  good  faith. 

"  Inquiries,"  says  the  Improvements  Committee  in  an  official  re- 
port, *'  are  often  received  from  persons  who  are  seeking  information 
only  to  enable  them  to  hawk  the  property  and  thus  earn  commission 
or  to  make  a  profit  by  securing  for  themselves  a  larger  offer  than 
that  which  the  Council  would  probably  accept.  It  is  clearly  not  to  the 
interest  of  a  public  authority  like  the  Council  that  such  proceedings 
should  be  encouraged,  and  we  therefore  see  no  reason  to  depart  from 
the  present  practice. 

"  With  regard  to  the  suggestion  that  prices  should  be  fixed  at 
once  for  the  various  sites  belonging  to  the  Council  we  desire  to  point 
out  that  the  more  valuable  portions  of  the  Council's  surplus  property 
are  of  such  a  description  that  it  is  impossible  to  fix  the  true  value 
of  the  sites  until  the  market  has  been  tested  and  the  extent  of  the 
competition  ascertained.  Even  in  the  case  of  ordinary  property 
there  have  been  several  instances  where  the  rent  eventually  received 
has  been  greatly  in  excess  of  that  which,  having  regard  to  the  pre- 
vious transactions  in  property  in  the  locality,  we  should  have  advised 
the  Council  to  accept.  The  only  object  of  fixing  the  rents  would  be 
to  fix  the  minimum  with  a  view  to  inviting  offers.  This  might  have 
the  result  of  disposing  of  some  of  the  lands  more  readily,  but  the 
difference  between  the  minimum  and  the  proper  rent  would  accrue 


36 

as  prolit  to  the  lessees.  We  consider  that  such  a  course  might  lead 
to  a  state  of  affairs  similar  to  that  revealed  at  the  inquiry  mto  the 
work  of  the  Metropolitan  Board  of  Works.  It  will  be  sufficient,  per- 
haps, if  we  quote  three  instances  of  the  abuses  which  are  likely  to 
occur.  In  one  case  a  site,  leased  by  the  Board  for  i560  a  year  was 
let  very  soon  afterwards  at  a  rent  of  il,090.  In  another  case  prop- 
erty was  sold  for  £1,500  which  was  resold  within  a  year  for 
£3,000;  in  a  third  case  a  site  was  resold  at  a  profit  of  nearly  £2,000 
before  the  original  purchaser  had  even  obtained  the  land  from  the 
Board.  Although  there  were  other  reasons,  we  think  that  these  re- 
sults may  be  chiefly  attributed  to  the  anxiety  of  the  Board  to  dis- 
pose, as  soon  as  possible,  of  its  surplus  lands.  We  conceive  it  to 
be  the  wish  of  the  Council  that,  instead  of  a  large  profit  being  secured 
by  private  speculators  out  of  dealings  in  its  surplus  land,  every  ef- 
fort shall  be  made  to  obtain  for  the  public  adequate  rents  for  the 
land  belonging  to  the  Council.  We  recommend  that  no  departure  be 
made  from  the  present  practice  with  regard  to  the  disposal  of  the 
Council's  surplus  land."  (15) 

For  variously  assigned  reasons,  severity  of  building  conditions,  high 
prices,  the  erstwhile  undeveloped  commercial  and  business  connections,  the 
lettings  in  the  Holborn-Strand  area  were  a  little  too  straggling  to  meet  with 
the  Council's  approbation.  Although  the  Council  neither  relaxed  the  build- 
ing requirements  nor  lowered  the  fixed  rentals,  it  was  decided,  upon  the 
recommendation  of  the  Improvements  Committee,  to  offer  some  "  counter- 
balancing inducements  "  to  investors.  Until  a  certain  number  of  sites  should 
be  let  and  the  commercial  character  of  the  thoroughfare  established,  the 
Council  in  1907  adopted  a  resolution  allowing  lessees  to  pay  for  the  first 
year,  a  peppercorn  rent  (i.e.,  a  nominal  rent),  for  the  second  25  per  cent., 
for  the  third  50  per  cent.,  and  for  the  fourth  75  per  cent,  of  the  ultimate 
rental.  In  this  case,  therefore,  it  would  take  five  years  before  the  Council 
came  into  the  enjoyment  of  the  full  site  value,  but  it  would  sacrifice 
nothing  of  the  ultimate  value  of  the  land. 

"  We  think,"  said  the  Improvements  Committee  in  recommending 
this  step  to  the  Council,  ''  that  this  course  will  greatly  promote  the 
early  initiation  of  building  operations,  which  is  a  matter  of  supreme 
importance  to  the  Council." 

The  increased  control  that  the  London  County  Council  has  been 
enabled  to  exercise  through  excess  condemnation  over  frontages  has  proved 
a  decided  success.  Not  only  have  statutes  empowered  the  city  to  control 
the  general  line  of  frontages,  but  also  the  height  of  buildings  and  the 
character  of  the  porticos,  balconies  and  verandahs  proposed  to  be  erected. 
Moreover,  the  Council  is  authorized,  when  letting  land,  to  specify  the  mini- 
mum sum  of  money  that  may  be  expended  upon  new  buildings.  But  even 
after  having  gone  thus  far,  London  does  not  seem  to  be  satisfied.     Sugges- 


(15)  Report  of  Improvements  Committee,  Nov.  28,  1906;  Minutes  and  Proceed- 
ings of  the  London  County  Council,  July-December,  1906,  pp.  1442-3. 


tions  have  been  made  that  the  Council,  when  planning  an  improvement, 
should  invite  the  views  of  leading  architects  and  engineers  so  that  the  best 
line  for  the  new  street,  having  regard  not  only  to  the  requirements  of  traffic, 
but  also  to  considerations  of  architectural  effect,  might  be  adopted.  In  doing 
this,  care  should  be  taken  in  planning  the  improvement  so  that  it  would  not 
exclude  beautiful  buildings  already  erected  from  fronting  upon  it;  but  it 
should  be  so  designed  as  "  to  fit  them,  and  bring  out  their  beauties  and 
enhance  their  architectural  effect."  Some,  in  their  desire  for  civic  beauty 
and  dignity,  even  wish  to  go  so  far  as  to  have  a  general  scheme  drawn  up 
providing  for  the  principal  features  in  the  elevations  of  the  buildings  to  front 
the  new  thoroughfare.  (16) 

In  fact,  this  was  done  in  the  case  of  the  Holborn-Strand  improvement. 
The  Council  resolved  to  hold  a  tentative  competition  for  designs.  It  accord- 
ingly invited  eight  architects  (four  to  be  nominated  by  the  Council  of  the 
Royal  Institute  of  British  Architects  and  four  by  the  London  County  Coun- 
cil) to  submit  drawings  for  the  elevations,  each  architect  to  receive  an  hono- 
rarium for  his  services.  The  competition  was  thus  narrowly  limited  be- 
cause it  was  feared  the  leading  architects  could  not  be  induced  to  enter  an 
"  open  "  competition.  Reporting  on  this  occasion,  the  Improvements  Com- 
mittee said : 

"  In  our  opinion  every  effort  should  be  made  to  secure  that  the 
great  thoroughfare  from  Holborn  to  the  Strand  in  addition  to  utility 
should  possess  beauty  and  civic  dignity,  as  some  of  the  grand  thor- 
oughfares in  certain  Continental  cities.  Measures  should  accordingly 
be  taken  to  insure  harmony,  though  not  perhaps  identity  of  design, 
in  the  architectural  treatment  of  the  buildings  to  be  placed  upon  the 
frontages  of  the  new  crescent,  and  on  the  northern  side  of  the 
Strand,  and  perhaps  in  the  main  thoroughfare  itself.  If  this  be  se- 
cured, the  Council  will  obtain  the  highest  possible  amount  for  the 
land,  and  the  ultimate  net  cost  of  the  improvement  will  be  reduced 
in  accordance  with  the  increased  dignity  which  the  new  thoroughfare 
may  possess."  (17) 

It  has  been  asserted  that  when  London,  in  order  to  economize,  has 
avoided  the  acquisition  of  expensive  buildings  in  laying  out  a  new  street  by 
selecting  an  irregular  line  for  its  route,  the  recoupment  has  not  been  so 
great  as  otherwise  it  would  have  been.  The  costly  buildings,  purposely  left 
outside  the  limits  of  deviation,  have  thrust  unsightly  and  awkward  ends  into 
the  frontage  of  the  new  avenue,  ruining  the  development  of  its  architectural 
features  and  thus  impairing  the  amount  of  the  augmented  land  values.  (18) 

Whether  this  "  increased  dignity  "  will  perceptibly  augment  the  recoup- 
ment is  a  question  of  considerable  doubt.     Within  certain  limitations,  build- 


(16)  Edwards,  History  of  London  Street  Improvements,  pp.  73-174. 

(17)  Journal  of  the   Royal   Institute  of   British  Architects,  3rd   Ser.,   Vol.   VII. 
(1900),  p.  439. 

(18)  Edwards,  History  of  London  Street  Improvements,  p.  21. 


38 

ing  regulations  will  undoubtedly  enhance  the  property's  value,  since  it  affords 
protection  to  its  owner,  but  when  these  conditions  encroach  upon  the  irre- 
ducible minimum  of  personal  liberty  demanded  by  the  Anglo-Saxon,  a 
reaction  may  well  be  expected.  ''  Increased  dignity,"  much  as  it  is  to  be 
desired  in  our  street  architecture,  would  then,  instead  of  filling  the  coft'ers 
of  the  municipality,  become  a  fixed  charge,  either  in  the  way  of  deferred 
sales  or  leases  and  the  loss  of  interest  incident  thereto,  or  the  lower  sale 
price  at  which  the  city  would  have  to  dispose  of  the  land  to  induce  the 
purchaser  to  accept  its  conditions. 


39 


Chapter   III. 
The  Clearance  of  Unsanitary  Areas  in  English  Cities. 

The  Industrial  Revolution  caused  an  entire  redistribution  of  English 
population.  It  marked  the  introduction  of  modern  town  life.  The  domestic 
system  of  industry  gave  way  to  the  factory  system.  The  economies  and 
conveniences  in  the  process  of  manufacturing  by  machinery  caused  great 
masses  of  men  to  migrate  to  the  cities. 

Eighteenth  century  transit  facilities,  being  mainly  pedestrian,  and  there- 
fore having  certain  well-defined  physical  limitations,  constrained  people  to 
live  within  a  very  narrow  radius.  As  a  result,  the  population,  with  each 
arriving  contingent  of  immigrants,  became  more  and  more  compact  and 
congested.  As  each  increment  in  the  census  registered  an  inexorable  in- 
crease in  land  values,  a  greater  number  of  persons  were  obliged  to  inhabit 
practically  the  same  area.  Houses  were  consequently  huddled  together,  most 
compactly.  Every  available  inch  w^as  built  upon.  Space  was  left  for 
neither  light  nor  ventilation.  Room  congestion  of  the  most  dire  and  ominous 
kind  accompany  house  congestion.  Dwellings  which  might  have  housed 
one  family  decently  now  contained  as  many  families  as  rooms — and  more. 
Neither  age  nor  sex  was  respected.  Each  sex  lived  and  slept  promiscuously 
with  the  other  irrespective  of  filial  or  marital  relationship.  These  houses 
were  built  upon  narrow  and  dark  courts  with  only  one  end  open.  With 
approaching  dilapidation  these  overcrowded  structures  became  so  plagueful 
as  to  endanger  the  very  existence  of  the  cities.  By  the  seventh  and  eighth 
decades  of  the  nineteenth  century  these  unsanitary  areas,  inhabited  by  the 
working  classes,  had  appalling  death  rates.  Thirty,  forty,  fifty  deaths  per 
year  for  each  thousand  population  in  these  slum  areas  was  not  an  uncommon 
condition  in  any  large  city  in  either  England  or  Scotland.  In  some  instances 
the  death  rate  rose  so  high  as  annually  to  wipe  out  one-twentieth  of  the 
population,  or  even  more.  In  Whitechapel,  London,  it  was  54  per  thousand. 
In  Bailie  Street,  Birmingham,  it  was  97  per  thousand. 

Not  until  the  later  sixties  did  the  cities  really  aw^aken  to  the  fact  that 
something  must  be  done.  By  that  time  the  pestilential  diseases  and  fevers 
raging  in  the  slum  areas  had  begun  to  affect  the  better  residence  districts. 
Then  Parliament  commenced  to  pass  acts  both  of  a  general  and  of  a  special 
character  enabling  the  municipalities  to  cope  with  the  situation. 

At  first  the  general  acts  proceeded  upon  the  principle  that  the  responsi- 
bility of  maintaining  property  in  a  sanitary  condition  should  fall  upon  the 
owner.  The  community  was  enabled  to  step  in  and  compel  him  to  perform 
this  duty  in  case  of  negligence.     The  Torrens  Acts,  1868  to  1882,  provided 


40 

for  the  gradual  amelioration  of  unsanitary  areas  by  empowering  the  local 
bodies,  after  having  ascertained  the  cause  of  a  dwelling  being  unfit  for 
human  habitation  and  the  remedy  for  it,  to  serve  notice  on  the  owner  re- 
quiring him  to  make  at  his  own  expense  improvements  laid  down  and  speci- 
fied by  the  council.(l)  Houses  unfit  for  human  habitation  were  not  to  be 
used  for  dwellings.  If  the  owner  did  not  have  the  inclination  to  comply 
with  the  demands,  which  might  in  extreme  cases  even  involve  the  total 
demolition  of  the  building,  he  might  within  three  months  of  the  summons 
oblige  the  local  authority  to  purchase  his  property.  The  compensation  in 
case  of  dispute  was  to  be  fixed  by  arbitration.  This  provision,  however, 
was  repealed  in  1879,  and  the  council  was  given  the  power,  in  the  case  of 
repairs,  to  do  what  was  necessary,  charging  the  cost  upon  the  premises, 
and,  in  the  case  of  demolition,  to  scrap  the  entire  house  and  to  retain  a 
sufficient  amount  derived  out  of  the  sale  of  structural  material  to  recoup  the 
outlay.  The  principle  of  betterment  in  slum  areas  was  recognized  in  the 
amended  Torrens  Act  of  1879,  which  provided  that  the  arbitrator  in  assessing 
compensation  should  take  regard  of  and  make  allowance  for  any  increased 
value  that  might  accrue  by  the  execution  of  the  scheme  to  other  premises 
owned  by  such  persons  as  made  it  necessary  for  the  municipality  to  act. 
Property  acquired  by  a  city  under  this  act  had  to  be  disposed  of  within  seven 
years,  or  the  Secretary  of  State  could  intervene  and  sell  it.  The  act  aimed 
primarily  at  repair,  but  since  the  patching  up  done  by  the  owners  seldom 
rendered  the  properties  fit  for  human  habitation  for  any  great  length  of  time, 
the  authorities  became  rather  adverse  to  its  operation.  The  application  of 
the  law  did  not  relieve  congestion.  Reconstruction  being  permitted,  neither 
the  number  nor  the  closeness  of  houses  was  affected.  Progressive  as  this 
law  was,  when  compared  with  previous  legislation,  it  was  not  sufficiently 
advanced  to  combat  the  evil  unaided. 

Owing  to  the  fact  that  large  areas  were  so  defective  structurally  as  to  be 
incapable  of  repair,  and  so  ill-placed  with  reference  to  each  other  as  to 
require  nothing  short  of  total  demolition  and  reconstruction  to  bring  them  up 
to  a  proper  sanitary  standard,  Parliament,  to  supplement  the  Torrens  Act, 
passed  the  Cross'  Acts  in  1875-1882.(2)  The  object  of  the  Cross'  Acts,  in 
the  words  of  the  Commission  of  1884-1885,  was  to  do  on  a  large  scale  what 
was  contemplated  by  the  Torrens  Act  on  a  small  one.  Since  slum  areas 
were  frequently  the  property  of  several  owners,  and  since  it  was  not  in 
the  power  of  the  several  owners  individually  to  make  the  necessary  altera- 
tions, the  local  authority  was  granted  the  power  of  expropriation  and  pur- 
chase, and  on  the  completion  of  its  exercise  the  further  powder  to  proceed 
with  schemes  of  reconstruction. 

The  act  required  the  local  medical  officer  either  at  his  discretion,  or  at 


(1)  To  avoid  confusing  the  reader  the  Acts  are  not  mentioned  separately.     For 
the  Acts  see  31  and  32  Vic,  c.  130;  42  and  43  Vic,  c  64;  45  and  46  Vic,  c  54. 

(2)  42  and  43  Vic,  c  45,  and  46  Vic,  c  54. 


41 

the  request  of  two  justices  of  the  peace,  or  of  twelve  ratepayers,  to  make 
an  official  representation  with  respect  to  the  health  and  sanitation  of  any 
area  under  his  authority.  Upon  receiving  this  representation,  the  municipal 
council  was  to  take  his  findings  under  advisement.  If  satisfied  as  to  the 
facts  in  the  particular  case  and  as  to  its  financial  ability,  the  council  had  to 
declare  the  area  unsanitary  and  proceed  with  its  improvement.  Though 
obliged  to  act,  the  council  was  given  the  option  to  include  all  or  part  of  the 
represented  properties  as  well  as  any  neighboring  lands  necessary  to  make 
the  sanitary  improvement  effective  and  to  provide  sufficient  quarters  for 
accommodating  in  suitable  dwellings  at  least  as  many  persons  as  might  be 
displaced. 

Having  been  approved  by  the  council,  a  scheme  required  confirmation 
by  the  Secretary  of  State,  who,  in  case  of  opposition  by  owners,  lessees  or 
occupiers,  held  an  inquiry  to  determine  its  merits.  This  done,  he  might,  if 
he  saw  fit,  have  the  Local  Government  Board  issue  a  provisional  order 
allowing  such  action  to  be  taken  as  he  found  desirable.  Like  all  pro- 
visional orders,  this,  of  course,  had  to  receive  sanction  from  Parliament. 
Since  the  Housing  and  Town  Planning  Act  was  passed  in  1909,  mere  con- 
firmation by  the  Local  Government  Board  suffices  to  make  a  scheme 
effective. (3)  The  Secretary  of  State  was  also  given  the  power  to  make 
independent  inquiries  into  reported  unsanitary  areas  and  thus  require  the 
local  authority  to  take  action. 

Both  Cross'  and  Torrens'  Acts  were  amended  and  improved  from  time 
to  time,  when  their  defects  became  apparent.  But  soon  so  many  compli- 
cated amendments  as  to  procedure  had  been  made  that  it  was  rather  difficult 
to  say  just  what  the  law  was.  The  two  acts  were,  therefore,  consolidated 
with  new  amendments,  into  a  new  statute,  forming  respectively  Parts  I  and 
n  of  the  Housing  of  the  Working  Classes  Act,  1890.(4)  Though  several 
times  amended,  this  act,  in  the  main,  contains  the  rules  of  procedure  prac- 
ticed to-day  in  clearing  the  slum  areas. 

Lands  may  be  bought  for  clearances  either  by  agreement  or  by  com- 
pulsion, provided  that  such  purchases  take  place  within  a  reasonable  time 
after  the  adoption  of  such  scheme,  usually  three  years.  If  the  persons 
entitled  to  the  first  estate  of  freehold  in  the  land  proposed  to  be  compulsorily 
purchased  do  not  themselves  choose  to  carry  the  scheme  into  effect  or  to 
co-operate  with  the  municipality  in  doing  so,  the  entire  clearance  devolves 
upon  the  council.  In  cases  where  the  municipality  and  the  land  owmer  can- 
not come  to  an  agreement  concerning  the  purchase  price,  the  Secretary  of 
State  appoints  an  arbitrator  to  adjudicate  the  dispute.  Unless  a  jury  is 
appealed  to,  the  arbitration  award  is  final.  Since  1882,  an  appeal  to  a  jury 
has  been  permitted  only  in  instances  involving  sums  of  £1,000  or  over.  The 
original  Cross'  Act  provided  that  a  fair  market  value  should  be  paid  for 


(3)  9  Edw.  VII.,  c.  44. 

(4)  53  and  54  Vic,  c.  70. 


42 

the  premises  and  the  several  interests  involved  as  estimated  at  the  time  of 
commencing  the  scheme,  due  regard  being  had  to  the  nature  and  then  condi- 
tion of  the  property,  and  to  the  probable  duration  of  the  buildings  in  their 
existing  state,  and  to  their  state  of  repair,  and  all  circumstances  affecting 
their  value,  without  any  additional  allowance  for  compulsory  purchase. 

Every  safeguard,  it  was  thought,  had  been  taken  to  avoid  excessive  pay- 
ments, but  the  desired  results  were  not  secured.  The  law  was,  therefore, 
amended  in  1879  by  having  a  premise  unfit  for  human  habitation  evaluated  as 
a  nuisance,  this  valuation,  after  the  estimated  cost  of  abating  such  nuisance 
had  been  deducted,  forming  the  purchase  price.  In  1882  a  most  drastic 
amendment  restricted  compensation  in  case  of  property  so  unfit  as  not  to  be 
reasonably  capable  of  being  made  fit  for  human  habitation  to  the  site  value 
plus  the  value  of  the  scrapped  materials.  The  probable  duration  of  buildings 
is,  of  course,  taken  into  consideration  in  fixing  the  price.  But  any  addition 
to  or  improvements  of  the  property  made  after  publication  of  the  clearance 
scheme  is  not  to  be  included,  unless  necessary  for  its  maintenance  or 
proper  repair.  Any  interests  created  after  that  date  are  absolutely  ignored 
so  far  as  recompense  is  concerned.  In  determining  the  fair  market  value, 
the  arbitrator  can  allow  no  compensation  for  any  present  value  due  to  the 
premises  being  put  to  illegal  uses  or  to  being  so  overcrowded  as  injuriously 
to  affect  the  health  of  tenants.  No  legal  allowance  is  made  for  compulsory 
purchase  of  lands  judged  to  be  unsanitary,  and  only  10  per  cent,  over  and 
above  fair  market  value  is  allowed  for  neighboring  lands  taken  to  make 
a  more  efficient  scheme.  The  forced  sale,  however,  seems  always  to  have 
considerably  increased  the  price  paid  for  slum  property  in  spite  of  all  pre- 
cautionary measures  taken  to  protect  the  municipality  against  extortion. 
One  authority,  Mr.  Nettlefold,  asserts  that  compulsory  purchase,  even  to- 
day, entails  a  payment  anywhere  from  10  to  15  per  cent,  above  real 
value. (5)  In  its  early  slum  clearances,  Liverpool  purchased  unhealthy 
houses  by  agreement  at  less  than  half  the  price  she  was  obliged  to  give  for 
those  obtained  compulsorily.  In  some  cases  on  record  larger  sums  per 
square  yard  have  been  given  in  purchases  by  agreement  than  in  those  by 
compulsion,  but  almost  invariably  the  explanation  for  this  is  found  in  the 
fact  that  the  more  valuable  lands  were  those  purchased  by  agreement.  (6) 

Allegations,  furthermore,  to  the  effect  that  corruption  has  added  its  share 
to  the  compensation  granted,  are  not  altogether  wanting. 

"  It  has  not  been  an  uncommon  experience,"  says  Mr.  Thomp- 
son, "  to  find  enthusiastic  supporters  of  these  clearance  schemes  on 
many  town  and  district  councils  in  the  shape  of  friends  of  those  who 
own  slum  cottages  which  they  want  the  taxpayers  to  take  off  their 
hands.  Demolition  schemes,  under  present  conditions,  are  doubly 
profitable  to  this  class,  because  they  not  only  get  an  inflated  value  for 


(5)  S.  S.  Netdefold,  Practical  Housing,  1908,  p.  19. 

(6)  First   Report   of    Royal    Commission    on   Housing   of    the   iWorking   Classes 
1884-5.    Minutes  of  Evidence,  p.  706. 


43 

the  slums  they  sell,  but  they  also  get  an  increased  rental  for  their 
other  dwellings  owing  to  the  dispossessed  tenants  competing  for 
rooms  in  the  remaining  slums,  which  they  are  compelled  to  go  to  on 
account  of  the  house  famine."  (7) 

That  slum  clearances  are  not  always  entered  into  with  the  purest 
motives  is  also  corroborated  by  Mr.  Nettlefold.  "  Our  slums,"  he 
says,  "  are  gilt-edged  securities.  People  who  want  to  get  rich  quickly 
and  do  not  care  very  much  what  method  they  adopt  to  attain  that  end, 
buy  slums.  The  worse  the  slum,  the  better  the  owner's  chances  of 
realizing  huge  profits  on  his  investment.  *  *  *  There  have  always 
been  a  small  number  of  clever  and  unscrupulous  property-owners 
who  saw  it  was  to  their  advantage  to  encourage  local  authorities  to 
occupy  themselves  with  municipal  building,  thereby  diverting  their 
attention  from  supervising  private  property  in  their  district."  (8) 

In  most  cases  it  seems  that  the  city  has  obliged  itself  to  buy  every 
square  foot  of  land  within  the  unsanitary  area.  But  cases  are  recorded  in 
which  the  municipality  has  retained  a  discriminating  power  in  the  demolition 
of  slum  property,  only  acquiring  and  dealing  with  those  premises  which  it 
could  purchase  at  reasonably  fair  prices.  This  was  done  in  the  Birmingham 
Improvement  Scheme,  1875. 

"  I  attach  great  importance  to  that  power  of  selection,"  testified 
Joseph  Chamberlain  before  the  Housing  Commission  of  1884-1885. 
"  It  will  be  seen  at  once  that  one  advantage  of  it  was  that  it  enabled 
us  to  buy  land  more  cheaply.  Our  object  was  to  buy  land  by  volun- 
tary agreement  wherever  we  could  without  bringing  into  operation 
the  compulsory  clauses.  We  were  encouraged  by  what  had  taken 
place  in  Glasgow  to  believe  that  that  could  be  done  to  a  considerable 
extent;  and  having  a  right  of  selection  we  were  able  if  people  made 
extortionate  demands  upon  us,  to  put  them  aside  and  to  say  that 
we  would  not  buy  their  property.  We  had  the  power  of  selecting 
about  one-half  of  the  whole  area,  and  we  could  say  to  the  owners, 
*  If  you  ask  so  high  a  figure  we  will  pass  you  by  and  go  to  your 
neighbors,'  and  I  have  no  doubt  that  that  enabled  us  to  buy  upon 
much  better  terms.  The  condition  of  things  in  the  case  of  the  Metro- 
politan Board  of  Works,  and  of  other  local  authorities,  has  been,  I 
think,  that  where  they  have  made  a  scheme  embracing  a  particular 
area,  they  have  laid  themselves  under  an  absolute  obligation  to  pur- 
chase the  whole  of  the  area  and  have  by  so  doing  put  themselves  in 
the  hands  of  the  sellers  who  have  been  able  to  make  unreasonable 
demands  with  the  chance,  at  all  events,  that  they  could  get  the  arbi- 
trators and  juries  to  support  them.  *  *  *  There  is  a  further  ad- 
vantage in  the  power  of  selection,  namely,  that  we  were  enabled  in 
a  good  number  of  cases  to  make  arrangements  with  the  private  owners 
by  which  they  undertook  the  improvement  of  their  property,  and  we 
agreed  that  we  would  leave  them  in  full  possession  of  it.     Generally, 


(7)  W.  Thompson.  The  Housing  Handbook,  1903,  p.  45. 

(8)  Practical  Housing,  p.  34. 


44 

I  may  say  the  effect  has  been  that  for  the  cost  of  a  scheme  with  43 
acres  we  have  really  improved  a  district  of  93  acres."  (9) 

The  great  burden  of  making  unhealthy  houses  fit  for  habitation  seems 
tQ  have  fallen  upon  the  municipalities.  The  authorities  have  been  a  bit 
chary  in  requiring  landlords  to  keep  their  premises  in  proper  repair  or  to 
pay  the  penalty  of  having  their  buildings  closed  or  demolished.  In  many 
instances,  the  owners  are  persons  of  very  small  means,  often  old  people 
who  have  invested  all  their  savings  in  unsanitary  property,  sometimes  already 
very  heavily  mortgaged  to  secure  outstanding  debts.  These  persons  would 
frequently  find  it  impossible  to  raise  the  necessary  money  for  repairs.  As 
the  enforcement  of  the  law,  under  such  circumstances,  would  have  the 
appearance  of  persecution,  and  might  be  made  the  source  of  much  political 
capital,  the  governing  body  has  at  times  been  persuaded  to  buy  up  such 
properties  and  to  undertake  the  clearance  or  repairs  itself. 

Whether  demohtions  have  really  relieved  overcrowding  in  congested 
districts  is  a  question  that  is  subject  to  the  gravest  doubt.  The  weight  of 
authority  leans  to  the  conclusion  that  they  have  not.  At  first  the  law  re- 
quired that  all  persons  of  the  working  classes  displaced  should  be  rehoused 
on  the  very  area  dealt  with.  If  the  municipality  treated  the  entire  area 
at  once,  the  persons  dispossessed  usually  moved  into  neighboring  buildings 
already  filled  to  overcrowding.  Thus,  in  attempting  to  raze  plague  spots, 
the  local  authorities  have  actually  created  others  on  the  outskirts  of  those 
cleared.  When  the  improvement  has  been  completed,  and  new  structures 
erected  on  the  demolished  area,  the  dishoused  tenants  have  frequently  not 
returned  to  their  former  homes,  the  increased  rents  of  the  new  premises 
acting  as  a  deterrent. 

During  more  recent  years,  this  evil  has  been  greatly  diminished.  The 
municipality  is  now  required  to  rehouse  only  so  many  of  the  dishoused  per- 
sons as  in  the  judgment  of  the  Secretary  of  State  cannot  otherwise  secure 
suitable  accommodations.  But  his  discretion  is  limited  by  the  requirement 
that  at  least  one-half  of  the  dispossessed  tenants  must  in  every  case  be 
rehoused.  The  tendency  of  demolitions  to  increase  overcrowding  in  the 
unhealthy  district  has  also  been  lessened  by  giving  the  local  authority  the 
option  to  house  a  portion  of  those  displaced  outside  the  limits  of  the  area  to 
be  razed.  Piecemeal  demolition,  with  simultaneous  reconstruction,  has  been 
advantageously  used  in  some  cities,  the  tension  on  the  housing  accommoda- 
tions in  the  neighborhood  adjacent  to  ths  improvement  scheme  being  thus 
considerably  diminished.  Glasgow  and  Birmingham,  for  example,  in  their 
great  improvement  schemes  pursued  the  policy  of  not  displacing  more  than 
500  persons  at  a  time,  and  of  not  disturbing  these  until  adequate  provision 
had  been  made  for  their  rehousing. 

The  persons  constituting  "  the  working  classes  "  are  defined  in  a  Stand- 


(9)  First  Report  of  Roj^al  Commission  on  Housing,  1884-5,  Minutes  of  Evidence 
Q.  12,  372-3. 


45 

ing  Order  as  "  mechanics,  artisans,  laborers  and  others  working  for  wages ; 
hawkers,  costermongers,  persons  not  working  for  wages  but  working  at  one 
trade  or  handicraft  without  employing  others,  except  members  of  their  own 
family;  and  persons  other  than  domestic  servants  whose  income  does  not 
exceed  an  average  of  thirty  shillings  a  week,  and  the  families  of  such  persons 
who  may  be  residing  with  them."  (10) 

In  disposing  of  the  cleared  sites,  considerable  difficulty  has  been  experi- 
enced in  large  schemes  to  obtain  a  recoupment  at  all  approaching  the  expense 
incurred  in  their  acquisition.  As  the  slum  demolitions  undertaken  are 
usually  situated  in  central  locations  where  land  has  a  very  high  potential 
business  value,  the  authorities  are,  as  a  rule,  obliged  to  buy  the  properties  at  a 
price  far  in  excess  of  their  housing  value.  In  London  the  conveyances  at  first 
restricted  the  use  of  the  sites  in  perpetuity  to  working  class  dwellings,  but 
since  this  policy  proved  very  disastrous  to  recoupment,  the  period  of  this 
restriction  has  been  reduced  to  ten  years.  Because  of  their  position  and  also 
because  of  the  severe  housing  laws,  the  cleared  sites  often  possess  a  value 
for  commercial  purposes  five  or  six  times  in  excess  of  that  for  housing. 
Being  unable  to  charge  the  whole  of  this  cost  against  the  rents  received 
from  the  tenants,  the  local  authorities  generally  write  down  the  value  of  the 
land  to  its  housing  use.  A  large  part  of  the  cost  is,  therefore,  immediately 
decapitalized  and  added  to  the  local  debt.  Should  the  demand,  however, 
for  working  class  dwellings  cease  on  sites  so  written  down,  the  land  reverts 
to  its  commercial  value  and  covers  any  outstanding  debt  upon  it.  Some  rate- 
payers, apprehensive  as  to  the  moral  and  sanitary  benefits  resulting  from 
demolitions,  having  vigorously  protested  against  this  policy. 

The  first  city  to  undertake  slum  demolition  was  Glasgow.  (11)  In 
1866,  the  Glasgow  Improvement  Act — an  act  which  afterwards  became  the 
pattern  for  the  Cross'  Act — constituted  the  city  council  a  special  improvement 
trust  to  undertake  the  first  heroic  clearance  scheme.  The  unsanitary  area 
comprised  88  acres  in  the  very  heart  of  the  city  and  contained  51,000  persons, 
nearly  one-eighth  of  the  entire  population.  Two  filthy  streams  which  ran 
through  the  area  were  covered  over.  Thirty  new  streets  were  laid  out,  and 
twenty-six  old  ones  widened.  Twenty-three  acres  were  thus  devoted  to 
additional  streets  alone.  A  large  park  was  also  plotted.  With  such  vigor 
did  Glasgow  execute  the  scheme  that  within  the  first  five  years  19,000  people 
had  been  dishoused.  The  improvement  did  not  demand  the  destruction  of 
all  buildings.  The  better  ones  were  not  torn  down  but  thinned.  "  Wherever 
remodelling  and  rehabilitating  of  property  could  be  accomplished,"  says  Mr. 
Samuel  Chisholm,  sometime  Lord  Provost  of  Glasgow,  "  even  though  the 
result  did  not  satisfy  the  ideas  of  the  Committee  as  to  the  general  comfort 


(10)  W.  Thompson,  The  Housing  Handbook,  p.  41. 

(11)  Samuel  Chisholm.  The  History  and  the  Results  of  the  Operation  of  the 
Glasgow  Improvement  Trust.  Philosophical  Society  of  Glasgow,  1895-6;  also  City 
of  Liverpool  Housing  of  the  Working  Classes  Report  of  visit  of  the  Deputation  of  the 
Housing  Committee  to  Glasgow,  Manchester,  Sal  ford  and  London,  1901. 


46 

or  sanitary  completeness  provided,  if  it  was  an  appreciable  improvement  on 
what  had  formerly  existed,  it  was  adopted,  and  the  continuance  of  the  rental 
was  thus  secured."  Not  until  1889  did  the  city  begin  to  build  dwellings  on  its 
own  responsibility.  The  sites  were  acquired  so  slowly  and  at  such  low  prices 
by  private  builders  that  the  city  was  driven  to  this  extremity  as  a  last  resort. 
The  building  policy  of  the  scheme  has  been  carried  out  on  a  strictly  com- 
mercial basis.  Where  the  land  was  considered  most  suitable  for  shops  or 
business,  appropriate  buildings  for  such  purposes  have  been  erected  and 
let  at  their  full  market  value.  On  the  principal  streets,  stores  occupy  the  first 
floor  with  living  apartments  overhead.  The  purchase  and  improvement  of 
lands  and  buildings  involved  a  cost  of  $10,000,000.  The  new  buildings  con- 
structed have  involved  a  further  expenditure  of  $2,000,000.  Although 
property  has  been  sold  and  feu  duties  created  to  the  extent  of  $5,000,000,  the 
city  still  holds  premises  valued  at  $4,400,000.  The  burden  upon  the  rates  was 
in  all  about  $3,000,000.  The  income  from  the  scheme  was  in  1906  some 
$527,000,  and  the  expenses  $517,000,  the  net  surplus  being  consequently 
$10,000.  The  death  rate  for  the  City  of  Glasgow  was  in  1866,  30  per 
thousand ;  in  1906,  20  per  thousand. 

In  1875  Birmingham  undertook  a  scheme  embracing  an  area 
of  93  acres  and  a  population  of  16,596  persons. (12)  Of  this  about  45  acres, 
containing  1,867  dwelling  houses  out  of  the  total  of  3,744,  were  purchased. 
The  houses  actually  torn  down  numbered  about  1,200.  The  remaining  ones 
were  repaired  and  put  into  a  sanitary  condition  by  demolishing  buildings 
where  too  overcrowded,  paving  the  yards  and  providing  systems  of  sewage 
and  water-supply.  The  council  laid  out  a  great  thoroughfare.  Corporation 
Street,  through  the  unsanitary  area.  This  was  done  for  the  twofold  object 
of  securing  a  complete  current  of  air  through  the  district  and  of  lessening 
the  cost  of  the  scheme  by  enhancing  the  value  of  the  sites  after  their 
clearance  by  bringing  them  into  closer  communication  with  the  more  valuable 
lands  in  the  center  of  the  city.  The  municipality  has  let  the  lots  abutting  on 
this  street  on  75-year  leases,  under  the  terms  of  which  the  substantial  busi- 
ness blocks  required  to  be  erected  by  the  lessees  shall  at  the  termination  of 
that  period  become  the  property  of  the  city.  The  total  gross  cost  of  the 
improvement  was  $6,720,000.  This  was  reduced  by  a  recoupment  of 
$3,970,000  to  a  net  cost  of  $2,750,000.  From  the  property  acquired  for  the 
scheme,  the  city  is  now  drawing  an  annual  rental  in  excess  of  $310,000.  The 
death  rate  of  the  eight  most  unhealthy  streets,  which  had  averaged  53.2 
per  thousand  for  the  three  years  prior  to  the  commencement  of  the  improve- 
ment, decreased  to  21.3  per  thousand  after  its  completion. 

Between  1876  and  1912  London  cleared  97.22  acres  in  35  schemes, 
displacing  45,437  persons.     Of  these,  44,891   were  rehoused.     The  gross 


(12)  See  Testimony  of  Joseph  Chamberlain  before  Housing  Commission,  1884-5; 
Arthur  H.  Davis,  A  Short  History  of  the  Birmingham  Improvement  Scheme,  1890; 
Municipal  Year  Book,  1910,  p.  637. 


47 

cost  of  the  operations,  $16,769,580,  was  reduced  by  a  recoupment  of 
$4,616,375  to  a  net  cost  of  $12,153,205. 

In  the  earlier  schemes  the  land  was  usually  sold  subject  to  rehousing 
obligations  on  the  part  of  the  purchasers.  The  16  schemes,  in  which  this 
policy  was  followed,  displaced  22,872  persons  and  provided  for  the  re- 
housing of  27,174  persons.  The  clearance  of  these  41.73  acres  involved  a 
gross  cost  of  $8,349,995.  This,  however,  was  reduced  by  a  recoupment  of 
$1,755,300  to  a  net  cost  of  $6,594,695. 

In  the  later  schemes  a  considerable  part  of  the  land  has  been  retained 
and  the  municipality  has  done  its  own  rehousing.  This  policy  has  been 
followed  in  19  clearances  involving  an  area  of  55.49  acres.  The  gross  cost  of 
these  clearances  amounted  to  $8,419,585.  The  receipts  from  surplus  lands 
and  incidentals  aggregated  $2,036,970.  The  housing  value  of  the  land 
devoted  to  rehousing  was  $824,105.  From  the  gross  cost,  therefore,  a  sum 
of  $2,861,075  has  to  be  deducted.  This  reduces  the  net  cost  of  the  clear- 
ances to  $5,558,510.  The  buildings  erected  on  these  sites  have  cost 
$4,421,840.(13) 

All  these  improvements  resemble  each  other  to  a  considerable  extent. 
Leeds  is  at  present  clearing  a  slum  of  75  acres  in  extent,  Glasgow  one  of  25. 
Liverpool,  Edinburgh,  ^lanchester,  Greenock,  Swansea,  Wolverhampton, 
Douglas,  Sheffield,  Southampton,  Birkenhead,  have  all  cleared  large  areas 
with  the  common  experience  that  such  undertakings  are  financially  ex- 
pensive, but  socially  of  very  great  benefit  as  reflected  by  decreased  death 
rates. 

The  sum  of  $23,226,000  was  raised  in  loans  for  the  housing  of  the 
working  classes  in  English  and  Welsh  cities  outside  of  London  between  1891 
and  1905,  inclusive.  About  half  of  this  was  spent  on  slum  buying,  and  half 
in  providing  new  dwellings.  The  greater  part  of  this  was  spent  in  big 
clearances.     Only  $580,000  was  borrowed  for  small  schemes. 

The  amortization  of  debts  incurred  by  the  clearance  of  unsanitary  areas 
has  been  largely  influenced  by  questions  of  a  social  and  political  character. 
Ratepayers  are  more  favorably  inclined  toward  long  loans  than  toward  short 
ones.  The  former,  involving  a  smaller  annual  repayment  of  the  principal 
borrowed,  are  less  burdensome  upon  the  current  rates.  Holders  of  long 
leases  in  particular  find  short  loans  decidedly  to  their  disadvantage.  Any 
charge  laid  upon  the  rates  that  was  not  foreseen  at  the  time  when  the  lease 
was  entered  into,  and  consequently  not  taken  into  consideration  in  the  bar- 
gaining incident  to  the  letting  of  the  premises,  because  of  the  English  system 
of  taxing  rental  instead  of  capital  value,  falls,  of  course,  wholly  upon  the 
tenant.  The  proportional  shares  of  such  costs  respectively  borne  by  rate- 
payer and  landlord  var>^  inversely  to  the  length  of  the  loan.  If  the  loan  is 
liquidated  before  the  expiration  of  the  lease,  there  will  be  no  new  readjust- 


(13)  C.    J.    Stewart,    The    Housing    Question    in    London.    W.    Thompson,    The 
Housing  Handbook.     For  table  showing  data  for  separate  clearances  see  Appendix  IC. 


48 

ment  whatever  as  between  rentals  and  rates.  In  that  case  the  leaseholder 
is  obliged  to  pay  the  entire  cost  of  the  clearance,  the  landlord  not  a  single 
cent.  Parliament  has  always  assumed  a  very  conservative  attitude  in  re- 
gard to  loans,  exhibiting  the  greatest  hesitancy  in  granting  the  necessary 
power  to  finance  long  ones  and  holding  out  inducements  to  encourage  the 
issuance  of  short  ones.  When  it  has  lent  the  credit  of  the  State  for  these 
purposes  it  has  generally  accepted  a  lower  rate  of  interest  for  short  loans 
than  for  long  ones.  From  the  beginning  the  central  government  has  de- 
sired to  encumber  posterity  with  as  few  debts  as  possible.  The  regulations 
hedging  in  the  use  of  the  national  credit  have,  in  fact,  been  so  stringent  that 
all  but  the  smaller  cities  have  found  it  expedient  to  borrow  on  their  own 
securities. 

Another  point  to  be  considered  is  the  extent  to  which  the  amount  of 
capital  available  for  schemes  may  be  increased  so  that  larger  clearances  may 
be  undertaken  without  imposing  additional  burdens  upon  the  current  rates. 
Thus  if  a  two  and  a  half  per  cent,  loan  repaid  by  cumulative  annuity  is 
extended  from  sixty  to  one  hundred  years,  the  annual  charge  on  capital 
outlay  is  reduced  more  than  a  half  per  cent. 

The  subject  also  presents  itself  in  the  light  of  the  effect  which  such  a 
concession  might  have  upon  the  rents  charged  the  people  rehoused.  The 
reduction  in  rents  resulting  from  the  extension  in  the  terms  of  loans  would 
naturally  vary  in  different  schemes.  In  a  minor  London  scheme  it  was  esti- 
mated that  by  lengthening  the  term  from  sixty  to  one  hundred  years,  rents 
might  be  reduced  7.8  per  cent.  This  would  result  in  rentals  varying  between 
6s.  and  10s.  6d.  per  tenement  being  lowered  from  Sy^d.  to  lOd.  per  week 
respectively. 

The  general  and  local  acts  recognize  three  modes  of  repayment: 

1.  By  annual  installments  of  principal  together  with  the  interest  on 
the  sum  remaining  unpaid, — the  installment  system. 

2.  By  equal  installments  of  principal  and  interest  combined, — the  an- 
nuity system. 

3.  By  setting  apart  and  accumulating  at  compound  interest  a  sinking 
fund. 

The  first  method  repays  the  principal  by  equal  annual  installments.  It 
consequently  involves  a  much  smaller  total  outlay  in  respect  of  capital  and 
interest  than  either  of  the  other  methods,  although  the  burden  in  the  earlier 
years  is  heavier.  By  adopting  the  installment  system,  a  municipality  shifts 
a  minimum  of  the  burden  onto  posterity.  It  is  alleged,  however,  that,  as  a 
mere  matter  of  bookkeeping,  it  cripples  a  scheme  in  its  early  years  by  com- 
pelling too  high  a  charge  for  rents.  The  installment  plan  has  probably  been 
used  more  in  Liverpool  and  Glasgow  than  elsewhere. 

The  annuity  system  is  the  one  most  commonly  used.  It  consists  of  an 
equal  annual  charge  for  each  year  during  the  period  of  the  loan,  made  up  of 
varying  proportions  of  principal  and  interest.  Although  the  total  amount 
of  the  two  combined  is  always  a  constant  sum,  the  payment  in  respect  of 


49 

principal  is  subject  to  a  progressive  increase,  and  that  of  interest  to  a  pro- 
gressive decrease,  with  each  succeeding  year.  In  the  earher  years  of  the 
period,  the  annual  loan  charges  under  the  annuity  system,  as  compared  with 
the  installment  system,  are,  of  course,  considerably  less,  but  this  condition 
is  not  continuous.  Before  half  of  the  term  has  elapsed  the  annual  charges 
under  the  installment  system,  because  of  its  larger  repayments  of  principal 
at  the  start,  have  been  so  decreased  that  they  are  on  a  parity  with  those 
under  the  annuity  system.  The  annuity  system,  it  is  true,  eases  the  financial 
burdens  of  the  present  generation,  but  in  the  same  degree  that  it  achieves 
this,  it  also  increases  those  of  posterity.  Viewing  the  question  thus,  and 
remembering  that  the  grand  total  of  the  annual  charges  for  interest  incurred 
by  the  annuity  system  far  exceeds  those  by  the  installment  system,  it  is 
readily  understood  wh)"  Parliament  favors  the  installment  method. 

The  sinking  fund  and  annuity  methods  involve  identically  the  same  an- 
nual charge  in  respect  of  principal  and  interest. 

There  seems  at  present  to  be  a  growing  disinclination  to  undertake 
schemes  of  heroic  size.  Financially  large  clearances  have  proved  extremely 
costly.  In  London,  for  instance,  such  operations  have  required  an  average 
expenditure  of  $163,000  for  exery  acre  cleared.  Every  person  displaced  has 
involved  a  cost  of  $390.  Some  authorities,  Mr.  Nettlefold,  for  example, 
seem  to  be  thoroughly  done  with  these  slum  demolitions.  (14)  They  argue 
that  far  more  good  could  be  accomplished  by  operating  under  Part  II  of  the 
Housing  of  the  Working  Classes  Act,  that  is,  on  the  principle  laid  down  by 
the  Torrens'  Acts.  To  proceed  along  these  lines,  it  is  claimed,  is  far  less 
expensive  and  much  fairer  because  it  puts  the  cost  of  repairing  directly  upon 
the  property  owner. 

But  in  addition  to  the  pecuniary  dissatisfaction  with  large  clearances, 
it  has  been  felt  for  a  long  time  that  improvements  of  this  nature  are  mere 
temporizing  palliatives. 

"  The  demolition  of  slum  property,"  says  Mr.  Dewsnup,  "  tem- 
porarily or  permanently  removes  the  slum  from  a  certain  number  of 
square  yards  of  lands  but  altords  no  guaranty  that  the  extent  or 
virulence  of  slumming  will  be  permanently  diminished.  As  has  been 
pointed  out,  conditions  may  be  such  as  to  permit  the  re-establish- 
ment of  slum  conditions  in  localities  hitherto  free  from  the  evil,  or 
at  any  rate  to  enlarge  the  boundaries  of  the  other  slums.  Hence,  a 
distinction,  not  always  realized  by  housing  reformers,  needs  to  be 
drawn  between  slum  property  demolition  and  slum  demolition/'  (15) 

Land  reformers  have  urged  that  what  is  really  wanted  is  not  so  much 
slum  demolition  as  slum  prevention  and  that  this  can  be  accomplished  only 
by  changes  in  the  system  of  taxation.  Land  which  is  essential  to  the  free 
and  healthy  development  of  towns  is  at  present  being  kept  out  of  the  market 
in  order  to  enhance  its  value.     This  restriction  on  building  causes  congestion. 


(14)  Practical  Housing. 

(15)  Housing  Problems  in  England,  1907.  p.  233. 


50 

"  You  have  only  to  buy  an  ordinance  survey  map,"  said  Mr. 
Lloyd-George  in  making  his  budget  statement  of  19C&,  "  and  put 
together  the  sheets  which  include  some  town  of  your  acquaintance 
and  the  land  in  its  immediate  vicinity,  and  you  will  see  at  once 
what  I  mean.  You  will  find,  as  a  rule,  your  town  or  village  huddled 
in  one  corner  of  the  map,  dwellings  jammed  together  as  near  as 
the  law  of  the  land  will  permit  with  an  occasional  courtyard,  into 
which  the  sunshine  rarely  creeps,  but  with  nothing  that  would 
justify  the  title  of  '  garden.'  For  it  is  the  interest  of  the  landlord 
to  pile  together  on  the  land  every  scrap  of  brick  and  mortar  that 
the  law  will  allow.  And  yet  outside  square  miles  of  land  unoccu- 
pied, or  at  least  unbuilt  upon ;  land  in  the  towns  seems  to  be  let  by 
the  grain,  as  if  it  were  radium.  Not  merely  towns,  but  villages  (and 
by  villages  and  towns  I  mean  the  people  who  dwell  in  them)  suffer 
extremely  from  the  difficulty  which  is  experienced  in  obtaining  land, 
and  by  the  niggardliness  with  which  sites  are  measured  out."  (16) 

In  order  to  stimulate  the  erection  of  dwellings,  proposals  have  been  made 
favoring  the  exemption  of  improvements  from  all  taxation,  as  in  certain 
cities  in  Canada  and  Australia. 

"  The  effect  of  substituting  a  site-value  rate  for  an  ordinary 
rate,"  says  the  Minority  Report  of  the  Local  Taxation  Commission, 
1901,  *'  in  a  town  will  be,  roughly  speaking,  to  decrease  the  burden 
in  the  outskirts  and  increase  it  at  the  center.  Now  an  increased  bur- 
den will  certainly  not  stop  building  at  the  center  of  a  town — it  will 
merely  diminish  the  peculiar  advantages  of  the  central  position,  in 
other  words,  it  will  prevent  the  site-owner  from  obtaining  so  much 
rent.  But  a  diminution  in  the  burden  in  the  outskirts  may  well  tempt 
builders  to  build,  and  occupiers  to  live,  in  places  where  before  it 
was  not  worth  their  while  to  go,  and,  of  course,  any  increase  of 
building  on  the  ouskirts  tends  to  reduce  the  pressure  for  accommo- 
dation all  through  the  town ;  while  the  quality  of  the  accommodations 
also  is  likely  to  be  improved  by  the  lightening  of  the  burden  on  build- 
ing value. 

"  While  the  rating  of  site  value  thus  concerns  the  public  at  large 
as  an  administrative  reform,  it  is  of  special  importance  in  connection 
with  the  urgent  problem  of  providing  house  accommodations  for  the 
working  classes.  Anything  which  aggravates  the  appalling  evils  of 
overcrowding  does  not  need  to  be  condemned,  and  it  seems  clear  to 
us  that  the  present  heavy  rates  on  buildings  would  be  diminished,  and 
this  would  weigh  with  the  builder  who  is  hesitating  to  embark  on  the 
erection  of  new  structures."  (17) 

Just  what  effect  the  application  of  this  policy  would  have  in  the  case  of 
English  cities,  it  is  difficult  to  say.     Whether  the  exemption  of  improvements 


(16)  Hansard,  Parliamentary  Debates.     Commons  1909,  Vol.  IV.,  Cols.  546-7. 

(17)  Separate  Report  on  Urban  Rating  and  Site  Values,  Local  Taxation  Com- 
mission 1901.    Accounts  and  Papers,  1909,  Vol.  LXXI,  p.  272. 


51 

from  taxation  and  the  heavier  taxation  of  land  values  have  diminished  con- 
gestion in  Canada  and  Australia  is  a  very  much  debated  question.  (18) 

Although  the  Housing  Commission  of  1885  recommended  that  unim- 
proved lands  be  subjected  to  a  special  tax  of  four  per  cent,  on  the  selhng 
value,  no  step  was  taken  in  this  direction  until  the  Lloyd-George  budget 
was  passed  in  1910.  This  imposes  a  tax  of  one  half-penny  for  every  pound 
on  the  site  value  of  undeveloped  land. 

Another  solution  offered  for  overcrowding  is  that  of  land  municipaliza- 
tion. Mr.  E.  Dwyer  Gray,  a  member  of  the  Housing  Commission  of  1885, 
ardently  championed  this  reform.  (19) 

''  The  evil,"  he  said,  "  can  never  be  effectually  abated  so  long  as 
owners  of  land  in  towns  are  permitted  to  levy  a  tax  upon  the  whole 
community  by  way  of  an  increase  of  rent  proportionate  to  the  in- 
creased value  of  that  land,  due  not  to  any  efforts  of  theirs,  but  to  the 
industry  and  consequent  prosperity  of  the  community  as  a  whole. 
This,  in  reality,  is  a  constantly  increasing  tribute  by  the  whole  com- 
munity of  the  town,  to  the  individuals  who  own  the  land.  There  is 
no  finality  in  it,  and  therefore  increased  prosperity  brings  no  relief. 
The  only  thorough  remedy  is  to  enable  the  local  authority  in  every 
town  to  acquire  the  fee-simple  of  its  entire  district  compulsorily, 
and  for  this  purpose  the  district  should  be  so  enlarged  as  to  include 
the  probable  growth  of  the  town  for  a  considerable  period.  This 
proposition  may  appear  extravagant,  but  in  principle  it  is  a  mere 
extension  of  the  provisions  of  Sir  Richard  Cross's  Acts.  Those  acts 
enabled  a  sanitary  authority  to  purchase  an  *  area '  compulsorily, 
and  to  take  premises  not  in  themselves  in  an  unsanitary  condition, 
if  requisite  to  make  the  *  scheme  '  complete.  The  principle  of  taking 
property  compulsorily  for  the  benefit  of  the  working  classes,  even 
when  the  individual  owner  has  been  guilty  of  no  default,  is  thus 
fully  recognized.  If  it  is  just  to  take  one  man's  property  it  is  just  to 
take  many  men's  property  under  the  same  conditions  if  the  public  in- 
terest requires  it.  It  is  now  simply  proposed  to  make  the  '  area  '  ex- 
tend to  the  whole  '  district '  for  in  no  other  way  can  the  '  scheme  '  be 
made  really  complete  and  of  permanent  benefit.  The  community  rep- 
resented by  the  local  authority  would  then  have  the  benefit  of  such 
future  increase  in  the  value  of  the  land  of  the  town  as  was  due  to  its 
increased  prosperity,  caused  either  by  the  industry  and  enterprise  of 
the  community  or  by  circumstances  equally  beyond  its  control,  and  that 
of  the  original  fee-simple  holders  of  the  land.  Such  a  change,  while 
inflicting  no  injustice  upon  any  individuals,  provided  a  fair  purchase 
price  were  paid,  would  in  consequence  of  the  future  enhanced  value 
of  the  land,  eventually  not  only  do  awav  with  the  necessity  of  local 
taxation  in  towns  but  yield  a  constantly  increasing  surplus  applicable 
to  the  benefit  of  the  entire  community." 


(18)  See  Accounts  and  Papers,  1909,  Vol.  LXXI,  papers  by  T.  A.  Coghlan,  Agent- 
General,  N.  S.  W.,  p.  86.  L.  S.  Spiller,  First  Commissioner  Taxation,  Sydney,  N.  S. 
W.,  p.  133.  W.  H.  Hall,  Acting  Statistician,  Sydney,  N.  S.  W..  p.  132.  W.  P.  Reeves, 
Late  High  Commissioner  of  New  Zealand,  p.  78.  P.  Heyes,  Commissioner  of  Taxes, 
Wellington,  New  Zealand,  p.  136.  Leslie  Gordon  Corrie.  Brisbane,  Queensland,  p. 
209-211.     Luther  S.  Dickey,  on  Vancouver,  Single  Tax  Review,  June,  1911. 

(19)  First  Report,  1884-5,  pp.  67-68. 


52 

When  clearance  schemes  were  first  commenced  there  was  no  intention 
permanently  to  municipalize  the  ownership  of  land.  Land  acquired  in  slum 
demolition  was  to  be  sold  immediately  upon  the  improvement's  completion. 
Birmingham,  it  is  true,  from  the  very  start  determined  to  retain  the  fee- 
simple  of  the  acquired  land.  This,  according  to  Joseph  Chamberlain,  was 
done  for  two  purposes ;  first,  to  avoid  glutting  the  real  estate  market  by 
throwing  more  land  upon  it  than  could  be  readily  absorbed  without  diminish- 
ing land  prices;  and,  secondly,  to  reserve  the  unearned  increment  for  the 
municipality.  Glasgow,  after  vainly  trying  to  dispose  of  her  slum  property, 
was  forced  into  a  policy  of  municipal  ownership.  English  cities,  however, 
have  never  adopted  an  outright  policy  of  land  municipalization.  But  at 
present  there  is  a  strong  feeling  current  in  England  that  every  inducement 
to  acquire  and  hold'  land  for  both  present  and  future  needs  should  be  given 
municipalities.  In  deference  to  this  opinion,  Parliament  has  finally  been 
obliged  to  repeal  the  clauses  requiring  the  sale  of  property  acquired  under 
the  Housing  Act. 

The  transportation  question  is,  of  course,  most  intimately  related  to 
housing.  Transit  conveniences  of  an  inferior  grade,  or  too  dear  for  the 
working  classes  to  afiford,  are  in  a  very  large  measure  the  direct  cause  of 
congestion.  English  cities,  recognizing  this  fact,  have  made  provision  for 
cheap  workingmen's  trains. 

Taking  a  broad  view  of  the  problem,  to  resort  to  slum  demolition  as  a 
means  of  rendering  towns  sanitary  and  fit  for  habitation  is,  unquestionably, 
only  to  put  off  the  real  solution  of  the  housing  problem.  The  adoption  of 
this  method  as  a  permanent  policy  is  tacitly  to  admit  that  there  is  no  remedy 
at  all  for  the  evil, — to  tear  down  unsanitary  dwellings,  and  yet  permit  their 
reconstruction,  is  only  to  perpetuate  the  condition.  Slum  demolitions  may 
better  housing  conditions  for  a  day,  and  in  England  they  have  indisputably 
done  so,  but  they  do  not  touch  the  heart  of  the  disease. 


53 


Chapter   IV. 
Excess  Condemnation  in  the  United  States. 

Excess  condemnation  is  not  of  European  but  of  American  origin.  Eng- 
land did  not  adopt  it  until  1845;  France  until  1850;  Italy  until  1865,  and 
Belgium  until  1867.     New  York  adopted  it  in  1812. 

NEW  YORK.(l) 

Excess  condemnation  is  native  to  New  York  City. (2)  It  received  its 
first  legislative  recognition  in  the  street  and  park  opening  act  of  that  city 
in  1812.  This  act  (ch.  174,  sec.  3)  provided  that  it  should  be  lawful  for 
the  commissioners  of  estimate  and  assessment,  where  part  of  a  lot  should 
be  required  for  a  street  or  park  opening,  to  include  the  whole  lot,  or  any 
part  of  its  residue,  in  their  estimate  and  assessment  in  the  same  manner  as 
if  it  were  required  by  the  proceeding.  (3)  The  fee  simple  of  the  residue 
of  a  lot  included  in  the  estimate  and  assessment  and  not  required  for  the 
opening  vested  in  the  common  council  of  the  city  upon  confirmation  of  the 
commissioners'  report  by  the  supreme  court.  The  city  might  either  appro- 
priate the  residue  in  whole  or  in  part  to  public  uses,  or  sell  it.  In  case  a 
remnant  was  sold,  the  net  proceeds  derived  from  it  after  deducting  the 
charges  incidental  to  its  sale  and  conveyance  were  to  be  credited  by  the  city 
as  part  payment  of  the  surplus,  if  there  were  any  surplus,  in  the  commis- 
sioners' estimate  of  the  amount  to  be  paid  for  damages  over  and  above  the 
amount  of  benefits  to  be  assessed  in  the  proceeding. 

In  exercising  the  power  to  sell  surplus  lands  the  common  council 
adopted  the  principle  that  the  owners  of  the  adjoining  lots  had  a  pre- 
emptive right  to  the  remnants  at  the  price  contained  in  the  commissioners' 
estimate,  and  in  the  absence  of  such  an  estimate,  then  at  a  price  fairly  and 
equitably  fixed  by  the  street  commissioner  not  to  exceed  the  aggregate 
amount  of  damages.  The  practice,  with  very  few  exceptions,  was  to  dis- 
pose of  all  gores  in  this  manner.  If  the  adjoining  owner  did  not  care  to 
purchase  an  interest  in  a  gore  corresponding  to  the  interests  possessed  by 
him  in  the  lot  immediately  in  the  rear  at  this  price,  the  city  felt  free  to  dis- 
pose of  it  to  the  highest  bidder. 


(1)  The  paragraphs  on  excess  condemnation  in  New  York  were  prepared  by  the 
writer  for  the  Committee  on  the  City  Plan,  Board  of  Estimate  and  Apportionment. 
For  the  privilege  of  printing  them  here  for  the  first  time,  the  writer  is  indebted  to 
the  courtesy  of  Mr.  Robert  H.  Whitten,  the  secretary  of  the  committee. 

(2)  References :  Documents,  Board  of  Aldermen  and  Assistant  Aldermen,  Vol. 
I  (1831-2),  Doc.  No.  13;  Vol.  II  (1832-3),  Doc.  No.  80;  Vol.  Ill  (1833-4),  Doc.  No.  32. 

(3)  For  text  of  section  bearing  on  excess  condemnation,  see  Appendix  II  A. 


54 

The  policy  of  the  city  was  to  dispose  of  these  lands  as  soon  as  possible 
in  order  to  liquidate  the  debt  incurred  by  their  purchase  and  not  by  retain- 
ing the  remnants  to  delay  further  improvements.  The  receipt  of  the  pro- 
ceeds from  an  early  sale  was  the  only  means  of  making  effective  the  statu- 
tory provision  making  the  proceeds  a  fund  for  the  payment  of  the  damages. 

The  power  of  excess  condemnation  was  exercised  by  the  city  primarily 
for  the  purpose  of  securing  a  more  economical  replotting  of  the  frontages 
adjacent  to  public  improvements.  Financial  recompense  was  a  mere  inci- 
dent. The  pecuniary  advantages  accruing  to  the  city  were  found  primarily, 
not  in  the  profits  derived  from  the  re-sale  of  surplus  lands,  but  in  the  in- 
crease of  the  taxable  values  due  to  the  consolidation  of  remnants  into  lots 
of  such  shape  and  size  as  to  make  possible  the  erection  of  wholesome  and 
profitable  buildings. 

Excess  condemnation  was  regarded  not  as  a  revenue  measure,  but  as  a 
means  to  secure  desirable  improvements  in  the  city  plan.  It  was  not  utilized 
to  intercept  the  unearned  increment  arising  as  a  consequence  of  public  im- 
provements but  to  reimburse  the  city  for  the  funds  spent  in  making  them. 
To  have  gained  financially  by  its  exercise  would  have  been  considered  as 
"  taking  advantage  of  individual  necessity,  brought  on  by  action  of  law,  to 
wring  money  from  insulated  persons  for  the  public  benefit."  The  upset 
price  was,  therefore,  in  each  instance  adjusted  with  the  object  of  indemnify- 
ing the  city  for  its  original  outlay,  the  interest  charges  on  such  outlay  dur- 
ing the  period  intervening  between  the  acquisition  of  the  land  and  its  dis- 
posal, and  the  incidental  expenses  incurred  in  its  conveyance  and  sale. 

No  attempt  has  been  made  to  compile  an  exhaustive  list  of  the  cases  in 
which  the  power  of  excess  condemnation  was  exercised.  A  cursory  exami- 
nation of  the  records,  however,  shows  that  the  common  council  utilized  it  in 
the  opening  of  the  following  streets :  Third,  Fourth,  Sixth,  Thirteenth 
and  Fourteenth  Streets,  Seventh  Avenue,  Cedar  Street,  Lewis  Street,  Ex- 
change Place,  and  Lafayette  Place.  All  these  openings  occurred  in  the 
period  between  1812  and  1834.  The  area  of  the  twenty-four  plots  of 
known  area  taken  as  additional  lands  in  these  proceedings  varied  all  the 
way  from  nine  to  71,480  square  feet.  The  majority  of  these  plots,  how- 
ever, as  shown  below,  had  an  area  less  than  that  of  the  ordinary  lot : 

Number  of  Area  of  Plots  Taken — 

Plots  Taken.  Square  Feet. 

9 1—     500 

3 501—  1,000 

2 1,001—  2.500 

2 2,501—  5,000 

3 5,001—10,000 

3 10,001—15,000 

2 1 5,001  and  over. 


55 

The  village  of  Brooklyn  was  granted  the  power  of  excess  condemnation 
in  1833  (ch.  319,  sec.  3). (4)  The  act  provided  that,  where  a  residue  of 
any  lot  necessary  to  be  taken  should  be  left  by  an  improvement,  the  com- 
missioners might,  in  cases  where  injury  or  injustice  would  otherwise  be 
done  include  the  whole  lot,  or  such  part  of  the  lot  as  they  might  see  fit,  in 
their  report.  The  commissioners  were,  however,  required  to  obtain  the 
written  consent  of  the  owner  to  such  surplus  takings.  The  value  of  the 
residue  had  also  to  be  estimated  separately  from  the  part  of  the  lot  required 
for  the  improvement.  The  title  of  such  residues,  upon  the  confirmation  of 
the  report  and  the  payment  or  tender  of  the  amount  at  which  they  had  been 
estimated  to  the  owners,  vested  in  fee  simple  in  the  president  and  trustees 
of  the  village.  The  act  required  the  village  to  sell  the  remnants  to  the 
owners  of  the  next  adjacent  lands  for  a  price  not  less  than  the  sum  at 
which  they  had  been  estimated.  If  the  next  adjacent  owners,  upon  reason- 
able notice,  did  not  elect  to  purchase  the  remnants  at  this  price,  the  village 
was  privileged  to  sell  them  at  public  auction  to  the  highest  bidder.  If  the 
amount  realized  from  the  sale  was  less  than  the  commissioners'  estimate, 
the  deficiency  was  deemed  a  part  of  the  expense  incident  to  the  improve- 
ment. For  the  purpose  of  providing  against  such  deficiencies,  the  commis- 
sioners included  in  their  estimate  and  assessment  the  estimated  value  of  the 
residues.  Upon  the  sale  of  the  residues,  the  proceeds  were  credited  and 
allowed  to  each  of  the  persons  assessed  in  proportion  to  the  amount  of  their 
respective  assessments. 

The  act  incorporating  the  City  of  Williamsburgh  (Laws  of  1851,  ch.  91, 
sec.  8)  contained  a  provision  similar  to  that  irP Brooklyn. 

It  was  not  until  1834  that  the  constitutionality  of  excess  condemnation 
came  before  the  courts  in  the  Matter  of  Albany  Street  (11  Wend.,  149). 
In  considering  the  extension  of  Albany  Street  through  Trinity  Churchyard, 
the  city  proposed  taking  the  strip  outside  of  the  improvement  between  the 
street  and  the  northern  boundary  of  the  cemetery.  Trinity  Church  pro- 
tested that  the  extension  was  not  called  for  by  public  necessity  and  that 
the  strip  was  not  required  for  extending  the  street  nor  for  any  public  pur- 
pose. The  court  held  that  there  could  be  no  objection  to  a  statute  giving 
the  corporation  power  to  take  and  dispose  of  surplus  land  subject  to  the 
owner's  consent ;  without  his  consent,  surplus  land  could  not  be  taken.  This 
decision  was  affirmed  by  the  Court  of  Appeals  in  Embury  v.  Connor  (3 
N.  Y.  511—1850). 

The  right  to  take  surplus  land  over  the  owner's  protest  was  lost  to  the 
city  by  these  decisions.  The  right  still  left  to  the  city,  the  right  to  take 
surplus  land  subject  to  the  owner's  consent,  has  seldom  been  exercised  on 
account  of  the  owner's  reluctance  to  grant  the  necessary  consent. 

In  view  of  the  constitutional  amendment  adopted  in  1913,  it  is  expected 
that  the  right  to  take  surplus  land  over  the  owner's  protest  will  soon  be 


(4)   For  text  see  Appendix  II  B. 


56 

restored  to  the  city. (5)  In  1914  the  legislature  passed  an  amendment  to  the 
Greater  New  York  Charter  permitting  excess  condemnation,  which  was 
vetoed  by  the  Mayor.  This  amendment  would  have  reconstituted  the  whole 
procedure  in  condemnation  cases.  The  Mayor  recorded  his  complete  sym- 
pathy with  the  purpose  of  the  amendment.  Certain  supposed  defects  in  its 
drafting,  however,  caused  his  disapproval  of  the  measure.  The  act,  which 
was  to  take  immediate  effect,  abolished  the  trial  of  condemnation  proceedings 
by  commissioners  vesting  it  in  courts  without  juries,  but  did  not  provide 
additional  judges  for  this  work.  This,  it  was  believed,  would  have  imposed 
a  serious  burden  upon  the  judges. 

MASSACHUSETTS. 

In  recent  years,  excess  condemnation  has  received  more  consideration 
in  Massachusetts  than  in  any  other  state.  In  1903  the  legislature  appointed 
a  committee  on  eminent  domain  which  made  an  exhaustive  study  of  the 
subject. 

The  bill  drafted  by  this  committee  restricted  excess  takings  to  remnants, 
which  on  account  of  their  shape  or  size,  were  unsuitable  for  buildings.  (6) 
The  power  to  take  land  in  addition  to  the  remnants,  in  order  that  appropri- 
ate building  lots  might  be  formed,  was  also  granted,  but  only  when  the 
remnants  could  not  be  sold  advantageously  to  the  owners  of  adjoining 
hinterland.  The  policy  outlined  contemplated  that  the  city  should  designate 
the  adjoining  property  with  which  the  public  interest  required  each  remnant 
to  be  united.  In  case  the  (^wner  of  such  adjoining  land  refused  to  pur- 
chase the  remnant  at  an  appraised  price,  the  city  might  then  expropriate  his 
property,  provided  some  portion  of  it  was  within  50  feet  of  the  improve- 
ment, for  the  purpose  of  uniting  it  to  the  remnant. 

The  act  passed  by  the  legislature  in  1904  (Ch.  443)  like  the  bill  pre- 
pared by  the  committee,  restricted  excess  takings  to  remnants  too  small  or 
ill-shaped  to  be  properly  improved. (7)  But  the  power  to  take  sufficient 
land  to  form  appropriate  building  lots  was  not  granted.  Adjoining  lands 
with  which  the  public  interest  required  the  remnants  to  be  united  might  be 
designated  but  the  act  provided  no  effective  instrument  to  secure  the  de- 
sired union.  The  owner  of  the  adjoining  hinterland  stood  in  no  fear  of 
having  his  own  property  taken  if  he  did  not  purchase  the  remnant. 

The  bill  drafted  by  the  committee  empowered  the  owner  of  a  plot  of 
which  a  part  was  required  to  demand  the  taking  of  the  whole  parcel  if  the 
area  of  the  residue  did  not  exceed  1,000  square  feet.  The  act  passed  by  the 
legislature  omitted  this  provision. 


(5)  Since  the  above  was  written  the  Legislature  has  passed  an  amendment  to 
the  Charter  permitting  the  City  to  exercise  excess  condemnation.  For  the  text  of 
this  amendment  see  page  92. 

(6)  Mass.  House  Doc.  No.  288,  Leg.  Sess.  1904. 

(7)  For  text  of  act  see  Appendix  II  C. 


57 

The  procedure  outlined  by  the  committee  to  safeguard  property  inter- 
ests and  the  public  from  arbitrary  or  ill-considered  takings  was  closely  fol- 
lowed by  the  legislature.  The  act  guaranteed  both  to  taxpayers  and  to 
owners  of  excess  lands  proposed  to  be  taken  the  right  of  judicial  appeal. 
Appeals  had  to  be  taken  to  the  superior  court  within  30  days  after  the  filing 
of  the  plan. 

On  an  appeal  being  taken,  the  court  was  to  appoint  a  commission  to 
enquire  into  the  suitability  of  the  remnants  for  the  erection  of  appropriate 
buildings  as  well  as  into  the  public  necessity  and  convenience  of  the  excess 
taking.  This  commission  was  to  hear  the  interested  parties  and  report  to 
the  court  within  three  months.  The  commission  was  allowed  the  fullest 
liberty  in  its  examination.  It  could  recommend  changes  in  the  proposed 
plan  either  by  omitting  remnants  the  taking  of  which  had  been  asked  for,  or 
by  adding  remnants  the  taking  of  which  had  not  been  asked  for.  Estimates 
of  the  probable  damages  incurred  by  the  taking  of  the  remnants  recom- 
mended and  of  the  probable  price  that  they  might  reasonably  be  expected  to 
realize  when  re-sold  were  to  be  included  in  the  commission's  report. 

The  appeal  was  not  to  be  heard  by  the  court  until  the  filing  of  this  re- 
port. Notice  of  the  report  when  filed  was  to  be  served  on  the  owner  of 
each  remnant  proposed  to  be  taken.  On  hearing  the  appeal,  the  court  could 
decree  the  taking  of  any  excess  lands  recommended  in  either  the  original  or 
the  revised  plan. 

On  account  of  its  doubted  constitutionality  there  was  considerable 
hesitancy  to  utilize  the  statute.  To  clear  itself  on  this  point,  the  legislature 
in  1910  requested  an  advisory  opinion  from  the  justices  of  the  supreme 
court  as  to  the  constitutionality  of  acquiring  and  reallotting  the  land  on 
either  side  of  a  thoroughfare  in  parcels  of  suitable  shape  and  size  for  de- 
velopment with  a  view  to  its  subsequent  sale  or  lease  to  private  individu- 
als. (8)  The  justices  expressed  the  opinion  that  such  takings  bore  no  direct 
relation  to  the  construction  or  use  of  the  street  for  travel  and  would,  there- 
fore, be  unconstitutional.  To  take  property  primarily  either  for  profit  or 
for  the  promotion  of  private  interests  by  furnishing  them  better  facilities 
for  doing  business  would  not  be  taking  it  for  a  public  use.  The  taking  of  a 
remnant,  which,  on  account  of  its  shape  and  size,  is  of  no  practical  value, 
the  justices,  on  the  other  hand,  considered  on  the  "  verge  of  constitutional- 
ity." The  condemnation  of  such  a  remnant  upon  a  finding  by  the  commis- 
sion that  the  public  convenience  and  necessity  demanded  it,  the  justices 
intimated,  would  be  found  constitutional  if  the  matter  came  before  them  in 
a  judicial  manner. 

As  the  power  to  take  remnants  without  the  power  to  take  sufficient 
land  to  form  suitable  building  lots  would  have  been  of  small  use  in  planning 
improvements,  the  statute  was  never  utilized.     The  state  obviated  all  doubt 


(8)  Opinion  of  the  Justices,  204  Mass.,  607,  616. 


58 

as  to  the  constitutionality  of  this  right  by  adopting  a  constitutional  amend- 
ment in  1911.(9) 

Since  the  adoption  of  this  amendment  only  one  city  has  obtained  the 
legislative  sanction  necessary  for  its  utilization.  An  act  of  1912  (Ch.  186) 
authorized  Worcester  when  it  should  widen  Belmont  Street,  an  outlying 
street  on  the  direct  route  to  Boston,  to  take  part  or  all  of  the  land  on  the 
widened  side  of  the  street,  inclusive  of  the  widening,  to  a  breadth  of  160 
feet.  (10)  The  street,  which  is  to  be  widened  40  feet,  to  a  width  of  100  feet, 
is  2,890  feet  in  length.  Owing  to  financial  embarrassments,  the  city  has 
not  yet  (December,  1914)  availed  itself  of  the  authority  granted  by  this  act. 


OHIO. 

On  the  recommendation  of  the  commission  that  suggested  the  civic 
center  for  Cleveland,  Ohio,  the  legislature  in  1904  passed  an  act  (Annotated 
Statutes,  ch.  2,  p.  755)  making  it  lawful  for  any  city  in  the  state  to  appro- 
priate land  neighboring  parks,  parkways  and  public  reservations.  (11)  The 
main  object  of  this  act  was  to  protect  and  preserve  the  environs,  view,  ap- 
pearance, light,  air,  and  usefulness  of  an  improvement.  All  excess  lands 
taken  had  to  be  sold  subject  to  servitudes  of  this  character.  The  Ohio  act, 
which  has  never  been  used,  served  as  a  model  for  the  acts  passed  by  Con- 
necticut and  Pennsylvania  in  1907;  by  Wisconsin  in  1911  and  by  Oregon 
in  1913. 

PENNSYLVANIA. 

Pennsylvania,  however,  restricted  excess  takings  to  parks,  parkways, 
and  playgrounds.  (12)  Such  lands,  moreover,  had  to  be  situated  within 
200  feet  of  the  improvement. 

When  Philadelphia  attempted  to  utilize  this  act  (No.  315,  Laws  1907) 
in  connection  with  Fairmount  Parkway,  it  was  declared  unconstitutional  by 
the  supreme  court  of  the  state.  (13)  The  court  held  that  the  constitutional 
provision  permitting  the  appropriation  of  private  property  for  public  use 
contemplated  an  actual  use  by  the  public  or  the  vesting  of  the  right  to  such 
use  in  the  public  and  not  in  private  individuals.  The  fact  that  the  public 
might  derive  benefit,  utility  or  advantage  from  the  taking  of  the  land,  did 
not,  in  the  opinion  of  the  court,  constitute  a  public  use  within  the  meaning 
of  the  constitution. 


(9)  For  text  of  amendment  see  Appendix  III  A. 

(10)  For  text  of  act  see  Appendix  II  D. 

(11)  For  text  of  act  see  Appendix  HE. 

(12)  For  text  of  act  see  Appendix  II  F. 

(13)  Pa.  Mutual  Life  Ins.  Co.  v.  Philadelphia,  88  Atl.,  904. 


59 

CONNECTICUT. 

The  Connecticut  act  (No.  61,  Laws  1907)  applies  only  to  Hartford. (14) 
Although  this  act  allows  the  greatest  latitude  in  the  taking  of  excess  lands, 
Hartford  has  been  most  conservative  in  exercising  its  authority.  On  sev- 
eral occasions  excess  land  in  the  form  of  gores  fronting  on  street  improve- 
ments have  been  taken,  not  with  a  view  to  financial  profit,  but  for  the  pur- 
pose of  simplifying  the  assessments.  No  attempt  has  been  made  to  dispose 
of  the  land,  it  being  permitted  to  remain  a  part  of  the  street. 

WISCONSIN. 

The  Wisconsin  act  (Ch.  486,  Laws  1911)  limited  the  application  of 
excess  condemnation  to  boulevards  and  parkways.  The  taking  of  excess 
land  beyond  500  feet  from  the  improvement  was  prohibited.  No  city  has 
as  yet  availed  itself  of  this  act.  The  act  was  passed  before  the  constitutional 
amendment  granting  excess  condemnation  was  adopted  in  1912. 

OREGON. 

The  Oregon  act  (Ch.  269,  Laws  1913)  restricts  the  exercise  of  excess 
condemnation  to  parks  and  playgrounds.  The  surplus  lands  taken  must  be 
within  200  feet  of  the  improvement. (15) 

VIRGINIA. 

By  the  act  passed  in  Virginia  in  1906  (Ch.  194),  cities  may  acquire 
excess  lands  in  the  vicinity  of  parks  or  public  reservations  when  it  is  used 
in  such  a  manner  as  to  impair  their  beauty,  usefulness  or  efficiency.  No 
city  has  taken  advantage  of  this  law.  (16) 

MARYLAND. 

In  1908  the  legislature  of  Maryland  passed  a  special  act  (Ch.  166) 
enabling  Baltimore  to  take  excess  land  adjoining  esplanades,  boulevards, 
parkways,  parks,  and  public  reservations.  (17)  The  purpose  for  which  such 
takings  might  be  made  was  defined  in  rather  comprehensive  terms.  Any 
excess  land  might  be  taken  that  was  in  any  manner  deemed  necessary  to 
promote  the  public  interest  in  the  improvement,  to  protect  or  enhance  its 
usefulness,  or  more  fully  to  effectuate  the  purpose  of  its  establishment. 

These  powers  were  incorporated  by  reference  in  an  act  (Ch.  110) 
passed  in  1910  providing  for  the  construction  of  a  street  over  Jones  Falls, 
known  as  ''  The  Fallsway."  The  validity  of  the  bonds  issued  under  this 
act  was  attacked  on  the  ground,  among  other  things,  that  the  act  attempted 
to  give  the  power  of  excess  condemnation.  (18)     The  court  of  appeals  de- 


(14)  For  text  of  act  see  Appendix  II  G. 

(15)  For  text  of  act  see  Appendix  II  H. 

(16)  For  text  of  act  see  Appendix  II  I. 

(17)  For  text  of  act  see  Appendix  II  K. 

(18)  Bond  V.  Mayor  and  City  Council  of  Baltimore,  116  Md.  683. 


60 

cided  that  the  act  did  not  give  any  power  of  excess  condemnation.  In  the 
opinion  of  the  court  the  act  only  granted  the  city  the  right  to  acquire  such 
additional  adjacent  land  as  might  be  necessary  for  connections,  cuts,  fills,  or 
parking,  in  other  words,  land  incidental  to  the  highway. 

The  act  of  1908  being  incorporated  by  reference  in  the  act  of  1910 
would  doubtless  receive  the  same  judicial  construction. 

CONSTITUTIONAL  AMENDMENTS. 

Four  states,  Massachusetts,  New  York,  Ohio,  and  Wisconsin,  have 
amended  their  constitutions  so  as  to  allow  excess  condemnation.  The 
amendments  of  Massachusetts  (19)  and  New  York (20)  are  restricted  in 
their  scope.  That  of  Massachusetts  limits  its  application  to  streets ;  that  of 
New  York  to  streets  and  parks.  The  constitutional  provisions  of  Ohio  (21) 
and  Wisconsin  (22)  are  more  comprehensive.  In  Ohio  the  exercise  of  ex- 
cess condemnation  is  not  restricted  to  any  enumerated  list  of  public  improve- 
ments. It  may  be  utilized  in  all  improvements  for  which  private  property 
may  be  taken  for  public  use.  In  Wisconsin  the  list  of  improvements  enum- 
erated by  the  amendment  is  very  inclusive. 

The  amendments  of  both  Massachusetts  and  New  York,  moreover, 
specify  that  the  excess  land  taken  may  not  be  more  than  is  necessary  to 
form  suitable  building  lots  abutting  on  the  improvement.  Neither  the  Ohio 
nor  the  Wisconsin  amendment  contains  such  restrictions.  In  these  states 
there  is  no  direct  limitation  upon  the  area  that  may  be  expropriated,  though 
in  Ohio  there  is  an  indirect  limitation  which  on  occasion  may  greatly  restrict 
excess  takings.  This  limitation  prohibits  the  bonds  issued  to  pay  for  such 
land  from  being  made  a  municipal  liability  or  from  being  included  in  the 
limitation  on  the  municipal  bonded  indebtedness.  Bonds  issued  for  this 
purpose  are  a  lien  only  against  the  property  so  acquired.  The  constitutional 
amendment  of  Massachusetts  makes  it  difficult  to  exercise  excess  condemna- 
tion, by  requiring  a  special  legislative  act  for  each  proceeding.  Only  such 
lands  as  are  specified  in  this  act  may  be  taken. 

New  York  held  two  constitutional  referendums  on  excess  condemna- 
tion. At  the  first  in  1911  excess  condemnation  was  defeated;  at  the  second 
in  1913  it  was  adopted.  The  first  proposal,  which  attempted  a  much 
broader  and  more  comprehensive  amendment  than  the  second,  provided  that 
a  municipal  corporation,  in  taking  private  property  for  public  use,  might  take 
additional,  adjoining,  or  neighboring  property  subject  to  conditions  pre- 
scribed by  general  legislative  act.  Property  thus  taken  was  to  be  deemed 
taken  for  a  public  use.  The  amendment  limited  neither  the  amount,  the 
location  nor  the  purpose  of  excess  takings. 


(19)  For  text  of  amendment  see  Appendix  III  A. 

(20)  For  text  of  amendment  see  Appendix  III  B. 

(21)  For  text  of  amendment  see  Appendix  III  C. 

(22)  For  text  of  amendment  see  Appendix  III  D. 


61 

A  constitutional  amendment  contemplating  excess  condemnation  in  Cali- 
fornia was  defeated  in  1914.  A  referendum  was  held  the  same  year  in 
Wisconsin  on  a  proposal  to  extend  the  power  of  excess  condemnation  be- 
yond the  limits  contemplated  by  the  amendment  adopted  in  1912.  This 
amendment  was,  however,  rejected.  Both  of  these  rejected  amendments 
were  similar  to  the  one  rejected  in  New  York  in  1911.(23) 


(23)  For  a  discussion  of  the  constitutional  aspects  of  excess  condemnation  see 
John  DeWitt  Warner,  Report  on  Scope  and  Limits  of  Expropriation  "Incidental"  vs. 
"Excess"  Condemnation  (1912)  Dept.  Docks  and  Ferries.  N.  Y.  C.  Doc.  No.  19; 
Walter  L.  Fisher,  Legal  Aspects  of  the  Plan  of  Chicago,  Plan  of  Chicago,  prepared  by 
the  Commercial  Club   (1909)   pp.  139-151. 


62 


Chapter  V. 

Conclusions  of  the  Committee  on  Excess  Condemnation.  National 
Municipal  League.  May  24,    ]912.(1) 

A  city  is  entitled  to  powers  which  will  enable  it  to  secure  the  fullest 
use  of  city  land  and  the  greatest  possible  freedom  in  adjusting  its  streets, 
parks  and  transit  systems  to  the  needs  of  city  life. 

From  time  immemorial  English  common  and  statute  law  has  recognized 
that  government  would  be  paralyzed  if  public  necessity  and  convenience 
were  not  paramount  to  private  ownership  and  enjoyment  of  land. 

In  built-up  portions  of  modern  cities  necessary  street  adjustments  can- 
not be  made  without  leaving  much  of  the  abutting  property  in  unusable  or 
unsuitable  form. 

The  scattered  private  ownership  of  such  parcels  long  retards  proper 
development  along  the  improvements,  and  represents  an  economic  drag  on 
the  whole  city. 

It  also  often  involves  hardship  on  the  private  owner  assessed  for  a 
benefit  which  has  actually  been  a  detriment  to  him  and  destined  to  wait  many 
years  before  the  owner  of  contiguous  usable  land  will  acquire  at  his  own 
price  and  unite  with  it  the  otherwise  unusable  remnant. 

For  a  city  to  spend  thousands  or  millions  of  dollars  in  the  creation  of 
parks,  boulevards  and  public  places  and  then  to  permit  the  destruction  of 
the  beauty  it  has  created  by  idiosyncrasies  of  abutting  property  owners  is 
a  waste  of  public  moneys. 

The  only  thoroughly  effective  instrument  for  protecting  such  public 
investments  and  for  correlating  city  land  into  its  most  usable  forms  is  the 
power  of  excess  condemnation  vested  in  city  governments. 

Whatever  recoupment  may  be  received  from  the  re-sale  of  property  so 
acquired  is  but  an  incident  in  the  exercise  of  this  power  for  public  purposes. 

Even  though  there  be  no  recoupment,  there  is  a  substantial  financial 
advantage  in  the  ability  to  acquire  whole  parcels  and  thus  escape  the  pay- 
ment of  damages  for  the  destruction  of  the  usability  of  a  parcel. 

Wherever  the  highest  courts  of  a  state  have  broadly  interpreted  what 
constitutes  a  public  use,  the  power  of  excess  condemnation  can  probably  be 
acquired  by  more  legislative  enactment.  In  some  states  where  courts  have 
been  particularly  broad-minded,  cities  may  secure  such  power  by  merely 
undertaking  the  condemnation  of  adjacent  property  and  carrying  suits 
against  such  taking  to  the  highest  courts. 


(1)  Reprinted  from  The  National  Municipal  Review,  Vol.  II,  pp.  24-25  (January, 
1913).  The  committee  consisted  of  Robert  S.  Binkerd,  Chairman,  Lawson  Purdy, 
Edward  M.  Bassett,  Nelson  P.  Lewis,  and  Herbert  S.  Swan. 


6Z 

In  most  states,  however,  where  the  courts  have  given  narrow  interpreta- 
tion to  what  constitutes  a  pubHc  use,  the  safest  plan  of  procedure  is  by 
amendment  of  the  state  constitution.  The  Supreme  Court  of  the  United 
States  in  several  important  cases  has  fairly  clearly  indicated  that  such  con- 
stitutional enactments  would  not  be  declared  void  under  the  constitution  of 
the  United  States. 

With  the  widened  scope  of  condemnation  and  its  increased  use  for 
social  purposes,  the  method  of  condemnation  becomes  of  very  great  im- 
portance. Movements  to  secure  the  grant  of  excess  condemnation  ought 
also  to  attempt  the  correction  of  abuses  in  existing  condemnation  methods 
or  to  secure  a  simpler,  more  direct  and  less  dilatory  and  expensive  method. 


Appendix   I. 

A.    The  Probable  Financial  Advantage  of  Excess  Condemnation  had  it  been  Exercised  in  the  Widening 

OF  Livingston  Street.  Brooklyn. 

Tlie  statement  shows  by  lots,  for  every  lot  fronting  on  the  Southwest  side  of  Livingston  street,  the 
ment  of  buildings  for  1905  just  prior  to  the  taking,  the  excess  of  the  award  over  the  building  asse 
for  1905  and  the  assessed  value  of  land  for  1911.  U) 




Building      E.xcess  of 

Assess-    Award  Over 

Land 

Land 

Damage 

ment.    Building  Assess- 

Value, 

Value, 

Sec.  Block. 

Lots. 

No. 

.\wards. 

1905.         ment,  1905. 

1905. 

19n. 

163      6  19 

163      6  19A 

163      8  20 

163      9  21 

163      10  22 

163      11   23 

163      13  24 

163      14  and  15 25 

163      16  26 

163      17   27 

163      18  28 

163      19  29 

163      20  30 

163  21,   22,  23 31 

164  8  32 

164      9  33 

164      10  34 

164      11    35 

164      12   36 

164      13   37 

164      14  38 

164      15 39 

164      16  and   17 40 

164      19  41 

164  20,22,23,24,25,27,28..  42 

164      29  and  30 43 

164      31,32,33 44 

164      34  45 

164      35  46 

164      36  47 

164  36  47A 

165  7  48 

165      10  49 

165      11   50 

165      11   50A 

165      12  51 

165      13  52 

165      14  S3 

165      15  54 

165      16  55 

165      17  56 

165      18  57 

165      19  and  20 58 

165      21   59 

165  22.24,26,27,28,29—1911  60 

165  30.34,35,36,37—1911 

165       60A 

166  9  61 

166      9  61A 

166      10  62 

166      10  62A 

166      11   63 

166      12  64 

166      13   65 

166  14,  15,  16,  17,  18,  19,  20, 

21,  22   66 

166      23   67 

166      24  68 

166      25  69 

166      26  70 

166      27  71 

166      28  72 

166      29,  30,  31 73 

166      32  74 

166      33  75 

166      34  76 

166      35  77 

166      36  78 

166  37  79 

167  5  and  6 80 

167      8  81 

167      9  82 

167      10  83 

167      II    84 

167      12  85 

167      13   86 

167      14  87 

167      IS   88 

167      16  89 

167      16  89A 

167      16  89B 

167      16  89C 

167      16  89D 

269      12  9 

269      27  1 

269      28  2 

269      30  3 

269      31   4 

269      32  5 

269      33  6 

269      35  7 

269      36  8 

269      40  10 

269      41   11 

269      42  12 

269      44  13 

269      45  14 

269      46  15 

269      47  16 

269      48  17 


$27,888  77  [ 
3,239  47  J 
13,056  96 
8,098  67 
15,380  45 
12,388  53 
10,760  09 
27,553  90 
15,101  18 
12,646  32 
10,329  05 

8',565  86 
28,355  96 
13,261  57 
11,668  OS 
10,527  00 
10,527  00 
10,224  56 
10,199  93 

7,267  54 

7,267  54 
20,605  23 
14,172  66 
136,404  95 
25,308  33 
41,100  73 
11,388  75 

7,086  33 
14,590  25  ( 
607  40 ) 
35,887  22 
10,548  51 
10,143  58  ) 
404  93  j 
10,548  51 
10,548  51 
10,548  51 
12,603  55 
12,299  85 
29,812  20 
13,648  58 
19,082  48 
10,022  10 
121,653  111 


1  01 J 
6,074  00  j 

1  01  j 
59,727  67  ( 

1  01  j 
9,111  00 
8,543  99 
8,543  99 

110,081  13 
10,022  10 
10,022  10 
11,603  87 
16,846  14 
19,107  79 
12,907  25 
25,670  34 
10,022  10 
10,022  10 
9,790  50 
10,275  18 
10,275  18 
12,348  24 
43,024  17 
10,730  73 
10,275  18 
10,275  18 
15,944  25 
11,206  91 
11,763  70 
11,206  91 
11,262  20 
296.009  30 1 
1.012  .13  I 
1,771  58  I- 
1,518  50 
354  31  J 
63.801  67 
19,864  00 
42,228  47 
13.916  55 
12,149  39 
9,617  17 
13,781  53 
10.310  61 
12,291  75 
11,513  09 
7.438  22 
43,121  35 
11,143  66 
6.590  30 
7.368  77 


$6,500    $24,628  24 


3,800 

3,500 
3,500 
3,500 
4,200 
2,100 
2,100 
4,900 


6,500 
3,400 
3.500 

3,500 
3,500 
3,500 
4,500 
4,500 
18,900 
7,300 
2,700 
3,500 


3,000 
14,000 


5,050 
15,250 
3,750 


3.000 
3,400 
5,000 


3,300 
2.400 
3,600 


5,400 
10,000 
4,100 
5..300 
4,800 
400 
9,800 
3,800 
3,400 
2.900 
3.200 


4,800 
3,500 
3,500 
7,000 
3,500 
3,500 
3,500 
2,600 
2,600 
9,700 
7,500 
3,700 
3,700 
3,700 
3,700 


40,000 
10,000 
15,000 
5,000 


12,600 
25,200 
12,600 
17,000 
16,800 
9,500 
9,500 
33,400 
22,000 
11,000 
11,000 
11,000 
11,000 
15,100 
11,300 
11,300 
40,100 
16,600 
152,000 

56,'700 
18,900 
18,900 
28,300 


17,500  71,800 

4,400  16,600 

4,000  16.600 

4,000  16,600 


40,801  67 
10.864  00 
38,228  47 
10,516  55 
9,649  39 
4,217  17 
3.781  53 
6,210  61 
6.991  75 
6,713  09 
7.038  22 
33.321  35 
7.343  66 
3.190  .30 
4.468  77 
5.080  89 
4.314  24 
12,815  13 


$619,330  $1,370,340  27    $649,1 


5,000 
14,000 


3,750  S 
3,750 
3,750 


4,000 
6,700 
2,400 
2,400 
2,400 
2,400 
2,400 


15,000 
21,000 
15,000 
5,400 


6,000 
4,200 
4.200 


16,600 
16,600 
15,100 
15,100 
19,200 
17,700 
31,300 
15,100 
( 87,000 
162,000 


18,600 


14-  14,600  I 

15-127,200  ) 

14,100 

14,100 

33,000 

18,500 
18,500 
44,100 
15,100 
15,100 
15,100 
12,000 
12,000 
15,000 
17,500 
14,800 
15,000 
15.000 
15,000 
15,000 
15,000 
15,000 
15,000 


15,000 
12,000 
28,800 
12,200 


22,  24,  26,  27,  28,  29. 

30,  34,  35,  36,  37. 
Cost,  yard. 


(1)  The  writer  is  indebted 
statement.     The   value  of  plots   fi 
»  Total  lots.  1905. 


67 


Appendix  I. 
B.    The  Financial  Results  of  Recoupment  in  London. 


L     IMPROVEMENTS    EFFECTED    BY   THE   METROPOLITAN    BOARD    OF 

WORKS,   1855-1889.  (1). 

A.     Thoroughfares  Widened. 


%  Re- 

coupment 

Gross 

Re- 

Net 

to  Gross 

Improvement. 

Cost. 

coupment. 

Cost. 

Cost. 

Holborn   (Middle  Row) £77,106 

Kensington    (High   Street) 186,954 

Park  Lane   (Hamilton  Place) 144,424 

Wapping    (High    Street) 253,720 

Shoreditch   (High  Street) -      211,703 

Old  Street  to  Oxford  Street,  Clerken- 

well  Road  and  Theobalds  Road....  1,121,004 

Harrow  Road  190,139 

Newington    Butts 15,336 

Coventry  Street 186,326 

Gray's  Road,  including  Elm  Street 475,035 

Kentish   Town   Road -  120,678 

Islington  St.  (The  "  Angel  ") 35,160 

Mare  Street,  Hackney 60,002 

Tooley    Street,    between    Bermondsey 

and  Dockhead  Streets 453,197 

Jamaica  Road  and  Union  Road 88,751 

Camberwell  &  Peckham 565,691 

Deptford  Bridge  approaches 134,487 

Tooley    Street,    between    Bermondsey 

Street  and  Dean   Street 75,906 

Upper    Street,    Islington 253,938 

Green   Street,   Bethnal  Green 66,714 

Tower    Hill 80,800 

Hammersmith    (King    Street) 55,364 

Star   Corner,   Bermondsey 112,112 

Walworth  Road   76,989 

Stingo    Lane.    Marylebone 95,815 

Hampstead    (High    Street) 137,813 

Total i5,275.164 

Changing  £  into  $  (at  $5  per  £)....     $26,375,820 


i691 

£76,415 

0.8 

60,520 

126,434 

32. 

33,456 

110,968 

23. 

37,186 

216,533 

14. 

89,887 

121,816 

42. 

286,338 

836,666 

25. 

62,380 

127,759 

36. 

1,566 

13,770 

10. 

85,880 

100,446 

46. 

84,421 

390,614 

17. 

26,695 

93,983 

22. 

10,359 

24,801 

29. 

24,340 

35,662 

40. 

77,108 

376,089 

17. 

17,578 

71,173 

19. 

155,226 

410,465 

27. 

26,889 

107,598 

19. 

45,388 

30,518 

59. 

54,643 

199,295 

21. 

11,832 

54,882 

17. 

365 

80,435 

OAi 

12,480 

42,884 

22. 

7,033 

105,079 

6. 

12,158 

64,831 

15. 

21,216 

74,599 

22. 

38,223 

99,590 

27. 

£1,281,858 
$6,409,290 


£3,993,306 
$19,966,530 


24.2 


(1)   George   Laurence   Gomme,   Royal   Commission   on   London   Traffic,   1906,  v 
^    if»Q  iin 


3,  pp.  108-110 


'Ol. 


68 


B.    New  Thoroughfares  Constructed. 


Gross 

Improvement.  Cost. 

Convent  Garden  Approach  (Garrick 
Street)     £123,212 

Southwark    Street 584,930 

Victoria  Park  approach  (Burdett 
Road)    48,149 

Mansion  House  (Queen  Victoria 
Street)     2,300,520 

Whitechapel    (Commercial    Road) 244.495 

Bethnal   Green   Road 295,182 

Willow  Walk,  Great  Eastern  Street..  455,002 

Charing  Cross  and  Victoria  Embank- 
ment approach  (Northumberland 
Avenue)    711,491 

Piccadilly  to  Bloomsbury  (Shaftesbury 
Avenue)    1,136,456 

Charing  Cross  to  Tottenham  Court 
Road    (Charing   Cross    Road) 778,238 

Southwark  Bridge  Road  (Marshalsea 
Road)    149,515 

South  Lambert  Road  (between  Wil- 
cox Road  and  Walton  Terrace) 22,704 

Kentish  Town  Road  to  Great  College 

Street   (Clarence  Road) 8,074 

Sun  Street  to  Worship  Street  (Appold 
Street)     143.518 

Poplar    (Cotton   Street) 18,401 

Victory    Place,    Newington 3.566 

Total £7,023,453 

Surplus    

Changing   £    into  $ $35,117,265 


%  Re- 
coupment 
Re-  Net       to  Gross 

coupment.       Cost.         Cost. 


£89,072 
218,860 

£34,140 
366,070 

72 
Z7 

9,945 

38,204 

20 

1,224,233 

42,270 

98.673 

178,990 

1,076,287 
202,225 
196,509 
276,012 

53 
17 
2>2> 
39 

831,310 
377,569 

119.819 
surplus 
758,887 

116 

180.739 

597,499 

23 

17,413 

132,102 

11 

7,755 

14,949 

34 

3,500 

4,574 

43 

62.799 
899 
446 

80.719 

17.502 

3,120 

43 

4 

12 

£3,344,473 


$16,722,365 


£3,798.799 
119.819 

£3.678.980 
$18,394,900 


47. 


C.     Thames  Embankments. 


Gross  Re-  Net 

Improvement.  Cost.  coupment.  Cost. 

Victoria    embankment £1,558,129  £401.148  £1,156,981 

Albert    embankment 1,153.862  139.337  1,014,525 

Chelsea  embankment 348,881  79,290  269,591 

Total £3.060.872  £619,775  £2.441,097 

Changing   £    into  $ $15,304,360  $3,098,875  $12,205,485 

Grand  Total $76,797,445  $26,230,530  $50,566,915 


%  Re- 
coupment 
to  Gross 
Cost. 


25. 
12. 
22. 

20. 


34. 


IMPROVEMENTS  EFFECTED  BY  THE  LONDON  COUNTY  COUNCIL. 
1889-1913.(2) 


Actual  or  Actual  or         Actual  or 

Estimated  Estimated        Estimated 

Gi'cssCost.(a)  Recoupment.      Net  Cost. 


Average 
Width 
Length  of  New 

oflm-         Street  or 
rovement.      Widened 
Thorough- 
fare. 


Per  Cent. 

of  Re- 
coupment 
to  Gross 
Cost. 


Fortress  road   36,597 

Evelyn  street    71,650 

Sandys   row   to   Bishopsgates 81,500 

Ben  Johnson   road 7,100 

Blockstock  road  16,427 

Holloway  road  8,950 

Old  street  at  Goswell  road 193,000 

Tower  Bridge  southern  approach  (Tower  Bridge 

road)    436,000 

Long  lane  207,400 

Wandsworth  road  63,000 

Battersea  Park  road 20.930 

York  road   87,150 

Albert  embankment    37,100 

Holborn  to  Strand  (Kingsway  and  Aldwych)..  4,866,(X)0 

Clare  Market  clearance  scheme 397.900 

High   Holborn,   Nos.   107-113 29,850 

Southampton  row  between  High  Holborn  and 

Theobald's  road   272,000 

Tower  Bridge  northern  approach   (Tower  Hill 

to    Prescot    street) 414,000 

Mansell    street    (continuation    of    the    northern 

approach  to  the  Tower  Bridge) 113,675 

Nine    Elms    lane 156,250 

Lewisham    High    road,   Loampit    Hill.    Loampit 

Vale.  Lee  High  road 111,030 

Bostall  Hill,  Basildon  road,  McLoed  road,  and 

Knee  Hill   10,900 

High  street  and  Lewisham  road 20.600 

South  Lambeth  road,  near  Vauxhall  Park 15.700 

Fulham  Palace  road.  High  street,  and  Church 

street    137,226 

Coldharbour  lane  to  Norwood  road 51,450 

Lea  Bridge  road  at  Lower  Clapton  road 22,600 

Essex  road    33,450 

Camberwell  New  road 72,000 

Malpas  road.  Brocklev  Rise.  Brockley  road,  and 

Stanstead  road    78.600 

Catford  Bridge    59.000 

Battersea  Bridge  road  and  Battersea  Park  road.  23,250 
Parker's  row,  Jamaica  road.  Union  road.  Evelyn 

street,   Blackhorse   Bridge,   Deptford   Creek 

Bridge,  Bridge  street  and  Church  street. . . .  151,000 

High  street  and  Highgate  Hill 16,500 

Woolwich  road    62,850 

Belvedere  road  62.050 

Putney  Bridge  road 58,200 

Norwood  road  to  Effra  road 30,000 

Queens  road,  Deptford 27,500 

Southgate  road  and  Green  lanes 24.700 

Dalston  lane  and  Graham  road 30,300 

Stanstead  road  to  Catford  road 45.650 

Mare  street  and  Upper  Clapton  road 47,690 

East  India  Dock  road 98.000 

Norton  Folgate   42.500 

Grand  Total  8,849,225 

Changing    i   into  $  $44,246,125 


7,093 

29,504 

450 

28 

19 

4,750 

66,900 

1,000 

60 

6 

28,074 

53,426 

500 

34 

960 

6,140 

250 

30 

8,877 

7,550 

400 

56 

54 

400 

8,550 

300 

60 

28,500 

164,500 

900 

60 

14 

42,000 

394,000 

360 

60 

17,000 

190,400 

1,100 

50 

8,000 

55,000 

800 

60 

12 

500 

20,430 

400 

7.000 

80,150 

3,500 

45 

3,100 

34,000 

450 

60 

g 

4,091,800 

774,200 

3,300 

lOO 

84 

181.400 

216,500 

45 

13.200 

16,650 

140 

70 

44 

110,000 

162,000 

500 

80 

40 

22,500 

391,500 

800 

60 

5 

10,900 

102,775 

1,100 

50 

9 

10,400 

145,850 

2,800 

50 

6 

2,800 

108,230 

4,950 

50-60 

2 

200 

10,700 

4,500 

54 

2 

50 

20,550 

1,700 

50-60 

0.2 

3.000 

12,700 

430 
Less  than 

54 

36,6'4 

100,602 

2,600 

50-60 

27 

2,720 

48,730 

2.825 

50 

5 

500 

22,100 

50O 

50 

2 

200 

33.250 

600 

50-60 

0.6 

15,500 

56,500 

270 

60 

700 

77.900 

5.490 

50 

0.9 

1.500 

57,500 

50 

250 

23.000 

1.500 

45-50 

1 

2.500 

148,500 

7,910 

45-60 

2 

6.000 

10.500 

830 

50-67 

36 

1.400 

61,450 

5,500 

50 

5,000 

57,050 

715 

60 

8 

2,000 

56,200 

2,980 

40-54 

3 

100 

29,900 

3.845 

40-50 

0.3 

2,000 

25,500 

710 

50-60 

7 

300 

24,400 

1,905 

50 

1 

400 

29,900 

790 

50 

1 

50 

45,600 

3.495 

50 

O.I 

2.100 

45,590 

790 

55-60 

4 

4.000 

94.000 

1,985 

70 

16,000 

26,500 

110 

70 

2,7 

4,702.348 

4,146,877 

76.870 

53 

$23,511,740 

$20,734,385 

(2)  Royal  Commission  on  London  Traffic,  Vol.  Ill,  Appendix  5,  pp.  110-113;  and  Reports  of  London  Traffic  Branch,  1908,  pp. 
143;  1909,  pp.  187-189;  1910,  pp.  162-164;  1911,  pp.  158-160;  1912.  pp.  131-133;  1913,  pp.  112-113. 

(a)  In  some  instances  the  cost  has  been  estimated  as  the  proceeding  was  carried  out  in  connection  with  other  improvemen 
clearances.    The  recoupment,  too,  in  certain  cases  has  been  estimated,  as  all  the  surplus  lands  have  not  yet  been  sold. 


n 


Appendix 
C.    Financial  Results  of 

L     Table  Giving  Insanitary  Areas  Cleared  by  the  Metropolitan  Board  of  Works 


Name  of  Scheme. 


Gross 
Cost  of 
Date.  Area.        Clearance. 


Acres. 

Whitechapel  and  Limehouse 1876  5 .  14 

Goulston     Street     and     Flower     and     Dean     Street, 

Whitechapel    1877  7.21 

St.   George-the-Martyr,    Southwark 1877  2.09 

Bedfordbury,    St.    Martin-in-the-Fields 1877  1.02 

Great  Wild  Street,  St.  Giles-in-the-Fields 1877  1 .65 

Pear  Tree  Court,  Clerkenwell 1877  0.82 

Whitecross  Street,  St.  Luke's 1877  7.11 

High  Street,  Islington 1877  1.02 

Old  Pye  Street,  Westminster 1877  2.46 

Bowman's  Buildings,  St.  Marylebone 1878  1.79 

Essex  Road,  Islington 1878  5.03 

Little  Coram  Street,  St.  Giles (b) 1879  1.44 

Wells  Street,  Poplar 1879  3.48 

Great  Peter  Street,  Westminster (b) 1879  0. 34 

Windmill  Row,  Lambeth 1883  0.54 

Tabard  Street,  Newington 1884  0.59 

Totals 41 .  73 

Changing  £  into  $  at  $5  per  £ 


£ 

187,558 

371,607 
66,786 
87,212 

124,278 
27,427 

391,303 
44,776 
79,389 
52.348 

115;i08 
14,359 
75,771 
235 
13,212 
18,630 


1.669,999 
8,349,995 


(1)  Royal  Commission  on  London  Traffic  III,  Appendix  No.  6,  Statement  G,  p.  234. 

(a)  Old  Pye  Street — Accommodation  for  a  small  number  of  these  persons  was 

(b)  Little    Coram   Street   and    Great   Peter    Street. — In   these   two   instances   the 
for  re-housing,  the  cost  of  street  improvements  only  being  borne  by  the  Metropolitan 

(c)  Some  additional  accommodation  for  persons  of  the  working  class  was  pro- 
the  following  schemes  :  Goulston  Street  and  Flower  and  Dean  Street.     Bedfordbury. 


IZ 


I. 

Clearances  in  London. 

and  Re-housing  Sites,  Sold  Subject  to  Obligation  on  Purchasers  to  Re-house. (1) 


Number   oi 

Persons   of 

Receipts  From  Sale  of  Site, 
and  Incidental. 

Working  Class. 

A 

^ 
Re-housed  on 

f 

^ 

Sold  for  Com- 

Site Assigned 

mercial  Pur- 

Sold With 

Net  Cost  Fall- 

Displaced 

For  Re-hous- 

poses (Includ- 

Obligation to 

Total. 

ing  on  the 

(Actual). 

ing   (on 

ing  Incidental 

Re-house. 

Rates. 

Basis  of  Two 

Receipts). 

Per  Room). 

£ 

£ 

£ 

£ 

10,895 

24,900 

35,795 

151,763 

3,669 

3,600 

60,010 

32,106 

92,116 

279,491 

4,004 

3,972 

2,042 

12,300 

14,342 

52,444 

1,266 

2,002 

3,815 

7,886 

11,701 

75,511 

867 

724 

2,788 

15,840 

18,628 

105,650 

1,913 

1,616 

(yhl 

5,925 

6,557 

20,870 

410 

596 

39,478 

36,882 

76,360 

314,943 

3,687 

3,756 

939 

5,650 

6.589 

38,187 

547 

798 

9,083 

20,410 

29,493 

49,896 

1,375 

1,722  (a) 

5,890 

10,000 

15,890 

36,458 

806 

1,570 

3,904 

13,306 

17,210 

97,898 

1,796 

3,422 

871 

871 

13,488 

645 

900 

6,652 

5,000 

11,652 

64,119 

1,029 

1,392 

23 

23 

212 

179 

416 

383 

3,050 

3,433 

9,779 

459 

400 

6,200 

4,200 

10,400 

8,230 

220 

288 

153,605 

197,455 

351,060 

1,318,939 

22,872 

27,174(c) 

768,025 

887,275 

1,755,030 

6,594,695 

provided  on  a  portion  of  the  cleared  site,  sold  free  from  re-housing  obligations, 
clearance  was  carried  out  at  the  expense  of  the  Peabody  Trustees,  who  used  the  site 
Board  of  Works. 

vided  on  the  portion  of  the  cleared  site,   sold  free   from  re-housing  obligations   in 
Whitecross  Street.    Old  Pye  Street.    Essex  Road.    Wells  Street.    Tabard  Street. 


2.     Table  GiviiiR  Particulars  of  the  Insanitary  Areas  Cleared  by  the  Metropolitan  Board  of   Works  and  the  London  County  Council,  and  Sites  for  Re-housing  Retained  by  the  Council  up  to  the  31st  March,  1912. 


Land 
Devoted  t 
Re-housin 


Number  of 
the  Working 


Wo! 


ge  Cost 
Room 


Class  Re-housed 


Hrook  Street,  Limeliouse 

Trafalgar    Road,    Greenwich 

ilughes   Fields,   Deptford 

Cahic  Street,  Shadwcll 

Boundary  St.  fecthnal  Green' (including  Goldsmith  Row,  Shoreditch). 

Brooke's    Market,    Holborn 

Mill   Lane,   Deptford 

Ann    Street,   Poplar 

Falcon    Court,    Soutliuark 

Cliurchway,  St.    Pancras 

Clare  Market,   Westminster 

Burford's   Court,   etc..    Poplar 

Nightingale   St.    Marylebone  (c) 

Garden    Row.    etc..    St.    Luke 

Aylesbury    Place.  Clerkenwcll    and   Union   Buildings,   Holborn 

Webber    Row,    etc..    Southwark 

Total     

Changing    £  into  %  ($5  per    .£) 


175,184 
91,588 
12,107 


.%0 

3  660 

37  5S3 

37,021 

13.000 

•55  5Jg 

82,7,'6 

9,750 

68,588 
98.926 
52,791 


iii 

5,^15'" 

t^ 

1^^ 

Royal  Commis 
and  Provided' 


IL,  Appendix 
received   for 


old:    Hughes  Fields. 


London   Traffic  Branch,   1908.   p. 


'■te^t 


rround. 

0  re-house  2-10  persons  in  ad( 

»s  follows:    Brooke's  Market, 


raffic  Branch,   1908.   p.   138:    1909.   p.    186;    1910.   p    161:    1911.   p.    157;    1912.   p.    1 
Falcon  Court.  Churchway,  Burford's  Court,  etc.,  Ga-den  Row.  Aylesbury  Place.  Wei 


e  last  column  of  the  table. 

^nn  Street,    £4,400,  and   Falcon   Cou 

■  the  acquisition   }f  the  property. 


(g)    Slicltnii  Siiifi  -Inclviding  345  persons 
(h)   Mill  Lane.  Dc,.tford— Including  SC 
(i)    Webber  Row — Including  6  rooms  ] 
(j)    Providence  Place — The  obligation 


iding  accommodation   I  _   , 

re-house   persons  displaced  by 


11 


Appendix   II. 
Acts  on  Excess  Condemnation  in  the  United  States. 
A.    Laws  of  New  York    1812,  Chapter   174.(1) 

Section  3.  And  he  it  further  enacted.  That  it  shall  be  lawful  for  the 
said  commissioners,  so  to  be  appointed  by  the  court  aforesaid,  for  any  of  the 
purposes  aforesaid,  in  all  cases  where  part  only  of  any  lot  or  lots,  or  parcel 
or  parcels  of  land,  or  of  any  other  tenements,  hereditaments  or  premises, 
shall  be  required  for  any  of  the  aforesaid  purposes,  leaving  a  residue  of  such 
lot  or  lots,  or  parcel  or  parcels  of  land,  or  other  premises  belonging  to 
the  same  owner  or  owners,  or  parties  in  interest,  to  whom  the  said  part 
thereof,  so  required  for  such  purpose,  shall  belong;  and  they,  the  said 
commissioners,  shall  deem  it  expedient  and  proper  so  to  do,  to  include  and 
comprise,  in  their  said  estimate  and  assessment,  the  whole  or  any  part  of  such 
said  residue  of  such  lot  or  lots,  or  parcel  or  parcels  of  land,  or  other  prem- 
ises along  with  the  part  of  the  same  so  required  for  the  said  purpose  of  the 
said  intended  operation  and  improvement,  in  like  manner  as  if  the  said 
residue,  or  the  part  thereof  so  to  be  included  in  the  said  estimate  and  assess- 
ment, was  required  for  the  purpose  of  making  the  said  operation  and  im- 
provement so  to  be  made;  and  all  the  said  part  and  residue  of  the  said  lot 
or  lots,  or  parcel  or  parcels  of  land,  or  other  premises,  so  included  in  the 
said  estimate  and  assessment,  and  not  required  for  the  purpose  of  making 
such  said  operation  and  improvement,  shall,  on  the  confirmation  by  the  said 
court  of  the  said  report  of  the  commissioners  of  such  further  report  as 
may  be  made  in  the  premises,  become  and  be  vested  in  the  said  mayor,  alder- 
men and  commonalty,  of  the  city  of  New  York,  and  their  successors,  in  fee 
simple,  who  may  appropriate  the  same,  or  any  part  thereof,  to  public  uses, 
and  shall  and  may  sell  and  dispose  of  the  residue  thereof,  or  the  whole,  in 
case  of  no  appropriation  of  any  part  thereof,  for  public  uses :     Provided, 

4.  And  be  it  further  enacted,  That  in  case  of  the  sale  of  the  same, 
or  any  part  thereof,  the  net  money  and  proceeds  arising  and  to  be  received 
therefrom,  after  deducting  and  paying  the  charges  of  such  sale,  and  the 
proceedings  and  conveyance  consequent  thereon,  shall  be  credited  and  al- 
lowed by  the  said  mayor,  aldermen  and  commonalty,  towards  and  as  part 
payment  of  the  surplus,  if  any  surplus  there  shall  be,  as  the  amount  of  the 
sums  estimated  and  reported  to  be  paid  for  damages  by  and  in  consequence 
of  the  making  the  said  operation  and  improvement,  in  the  said  report  men- 
tioned, over  and  above  the  amount  of  the  sums  or  assessments  assessed  and 
reported  to  be  paid  for  the  benefit  and  advantage  thereof,  to  those  who  may 
be  deemed  to  be  benefitted  thereby. 

(1)  New  York  exercised  excess  condemnation  under  this  act  until  1834,  when  it 
was  declared  unconstitutional  in  Matter  of  Albany  Street,  11  Wend.,   149. 


78 

B.    Laws  of  New  York   1833,  Chapter  319.(1) 

Section  3.  When  a  residue  shall  be  left  of  any  lot  or  lots  necessary  to 
be  taken  for  such  improvement,  the  said  commissioners  may,  in  cases  where 
injury  or  injustice  would  otherwise  be  done,  and  with  the  consent  in  writing 
of  the  owner  or  owners  of  such  lot  or  lots,  include  the  whole  or  any  part 
of  such  residue  in  their  report  (briefly  describing  the  same),  and  estimate 
separately  the  value  thereof.  Every  such  residue,  or  part  of  a  residue 
which  shall  be  so  included,  shall,  upon  the  confirmation  of  the  said  report  as 
hereinafter  provided,  and  the  payment  or  tender  of  the  amount  at  which 
the  same  shall  be  so  estimated  to  the  owner  or  owners  thereof,  vest  in  fee 
simple  in  the  president  and  trustees  of  the  village  of  Brooklyn,  who  shall 
thereupon  sell  and  dispose  of  the  same,  at  a  price  or  prices  not  less  than 
the  sum  at  which  it  shall  have  been  so  estimated  to  the  owner  or  owners  of 
the  next  adjacent  lands;  and  if  he  or  they  shall  not,  upon  reasonable  notice 
(to  be  determined  by  the  president  and  trustees  of  the  said  village),  elect 
to  take  the  same  at  such  price  or  prices,  it  shall  be  sold  and  disposed  of  at 
public  auction,  upon  such  notice  as  the  president  and  trustees  shall  deem 
proper,  for  the  best  price  or  prices  that  can  be  obtained  for  the  same.  In 
case  the  same  shall  sell  for  a  sum  less  than  that  at  which  its  value  was  esti- 
mated by  the  commissioners,  the  deficiency  shall  be  deemed  a  part  of  the 
general  amount  of  loss  and  expenses  arising  from  the  improvement.  And 
for  the  purpose  of  providing  for  the  event  of  such  a  deficiency,  and  for  the 
payment  of  the  amount  thereof,  the  commissioners  shall  include  in  the 
estimate  and  assessment  of  the  expenses  of  such  improvement,  the  estimated 
value  of  any  such  residue  or  part  of  a  residue,  which  may  be  included  as 
aforesaid  in  their  report;  and  upon  the  sale  of  the  same,  as  above  provided, 
the  proceeds  thereof  shall  be  credited  and  allowed  to  each  of  the  persons 
assessed,  in  proportion  to  the  amount  of  the  respective  assessments  against 
them. 

C.    Acts  of  Massachusetts   1904,   Chapter  443.(1). 

Section  2.  The  Commonwealth,  or  any  city  in  the  Commonwealth  so 
far  as  the  territory  within  its  limits  is  concerned,  may  in  the  manner  here- 
inafter set  forth,  take  in  fee  by  right  of  eminent  domain  the  whole  of  any 
estate,  part  of  which  is  actually  required  for  the  laying  out,  alteration  or 
location  by  it  of  any  public  work,  if  the  remnant  left  after  taking  such  part 
would  from  its  size  or  shape  be  unsuited  for  the  erection  of  suitable  and 
appropriate  buildings,  and  if  public  convenience  and  necessity  require  such 
taking. 


(1)  Whether  this  Act  was  ever  utilized  is  unknown. 

(1)  On  account  of  its  doubted  constitutionality  this  act  was  never  utilized.  To 
overcome  this  condition  a  constitutional  amendment  was  adopted  in  1911.  By  the 
terms  of  this  amendment  excess  condemnation  may  be  exercised  subject  to  special 
legislative  act. 


79 

Section  3.  Where  the  Commonwealth  or  a  city  proposes  to  take  land 
as  above  provided  there  shall  be  a  public  hearing  in  any  case  where  the 
Commonwealth  or  the  city  is  required  by  any  law  in  force  at  the  time  to 
have  such  a  hearing  before  taking  land  for  a  public  work  of  the  same 
nature  as  that  with  regard  to  which  it  is  proposed  to  take  land  under  this 
act,  and  such  notice  of  the  hearing  shall  be  given  as  is  required  by  such 
law.  If,  after  such  hearing,  the  Commonwealth  or  city  determines  that  a 
taking  should  be  made  it  shall  proceed  to  carry  out  the  taking  in  accordance 
with  the  provisions  of  this  act,  and  its  so  doing  shall  be  an  adjudication  that 
the  taking  of  the  land  for  the  public  work  is  required  by  public  necessity 
and  convenience  and  also,  subject  to  the  right  of  appeal  given  by  section  six, 
that  the  remnants  outside  the  boundaries  of  the  proposed  public  work  are 
unsuited  for  the  erection  of  suitable  and  appropriate  buildings,  and  that 
public  necessity  and  convenience  require  their  taking.  In  case  no  law  in 
force  at  the  time  requires  a  hearing  to  be  given  as  aforesaid,  the  filing  by 
the  Commonwealth  or  by  the  city  of  a  plan  and  memorandum  as  provided 
in  section  five  shall  be  adjudication  to  the  same  effect. 

Section  4.  When  a  taking  is  to  be  made  either  after  a  hearing  or 
without  a  hearing,  if  no  hearing  is  required  under  the  provisions  of  the  last 
section,  the  Commonwealth  or  the  city,  as  the  case  may  be,  shall  cause  to  be 
prepared  a  plan  and  a  memorandum  referring  to  said  plan  showing : 

(1)  The  land  intended  to  be  taken  for  the  proposed  pubHc  work,  and 
the  dimensions  and  area  of  each  parcel  included  therein. 

(2)  The  land  which  it  is  desired  to  take  outside  the  boundaries  of  the 
proposed  public  work,  and  the  dimensions  and  area  of  each  parcel  thereof. 

(3)  The  owner  of  each  parcel  which  it  is  desired  to  take,  the  buildings 
or  other  structures  upon  the  same,  and  the  grade  of  such  parcels  and  of  the 
proposed  public  work. 

Section  5.  The  Commonwealth  or  the  city  shall  file  such  plan  and 
memorandum  (which  last  shall  also  be  recorded  and  indexed)  in  the  registry 
of  deeds  for  the  district  wherein  the  land  is  situated ;  and  shall  within  seven 
days  of  said  filing  cause  notice  of  its  intention  to  take  such  land  to  be  served 
on  each  owner  of  a  parcel  which  it  is  proposed  to  take,  by  posting  the  notice 
in  a  conspicuous  place  on  such  parcel  and  by  publishing  the  same  once  in 
each  of  two  successive  weeks  in  a  daily  newspaper,  if  there  be  any,  published 
in  the  city  in  which  such  parcel  lies,  otherwise  in  a  newspaper  published 
in  the  county  in  which  such  parcel  lies,  and  also  by  mailing  such  notice  to 
every  such  owner  whose  address  is  known,  by  registered  letter;  and  no 
damages  shall  be  assessed  for  any  building  erected  on  said  land  subsequent 
to  such  filing,  or  for  any  subsequent  alterations  or  additions  to  any  building. 

Section  6.  The  owner  of  any  land  of  which  it  is  proposed  to  take  any 
part  which  lies  outside  the  boundaries  of  the  public  work  may  within  thirty 
days  after  the  date  of  such  filing  appeal  to  the  superior  court  for  the  county 
in  which  said  land  is  situated,  from  so  much  of  the  order  under  which  said 


80 

taking  is  made  as  relates  to  land  outside  said  boundaries ;  and  on  such  appeal 
the  court  shall  appoint  a  commission  of  one  member  or  three  members  to 
examine  and  report  to  the  court  as  to  whether  such  remnants  or  any  of  them 
are  unsuited  for  the  erection  of  suitable  and  appropriate  buildings,  and  as 
to  the  public  necessity  and  convenience  of  the  proposed  taking  outside  said 
boundaries. 

Section  7.  The  commission  appointed  pursuant  to  the  preceding  sec- 
tion shall  hear  the  parties  in  interest,  shall  give  such  notice  of  the  time  and 
place  of  its  hearings  as  the  court  may  have  directed  in  the  order  appointing 
it,  and  shall  report  to  the  court  within  three  months  after  its  appointment. 
It  may  in  its  report  recommend  changes  in  the  proposed  plan  by  omitting 
any  remnants  the  taking  of  which  may  have  been  asked  for,  or  by  adding 
any  remnants  the  taking  of  which  may  not  have  been  asked  for,  or  otherwise 
in  respect  to  so  much  of  the  proposed  taking  as  is  outside  the  boundaries 
of  the  public  work.  The  commission  shall  submit  with  its  report  an  esti- 
mate of  the  total  damages  to  be  paid  for  land  taken  outside  said  boundaries, 
in  case  a  taking  is  made  beyond  said  boundaries  to  such  extent  as  it  may 
recommend,  and  of  the  sum  the  Commonwealth  or  city  may  reasonably 
expect  to  realize  by  the  resale  of  the  parcels  taken  beyond  such  boundaries. 
The  commission  may,  with  the  approval  of  the  court,  employ  experts  to  ad- 
vise it  on  technical  questions  and  on  questions  relating  to  the  value  of  estates. 

Section  8.  On  the  filing  of  the  report  of  the  commission,  the  court  shall 
order  notice  thereof  to  be  given  to  each  owner  of  a  parcel  of  land  proposed 
to  be  taken  outside  the  boundaries  of  the  public  work,  in  such  manner  as  it 
may  determine,  and  at  any  time  after  the  date  set  by  said  notice  the  court 
may  proceed  to  a  hearing  on  the  appeal,  and  after  such  hearing  may  decree 
the  taking  of  such  parcels  of  land  without  said  boundaries  as  it  may  deter- 
mine, but  shall  not  decree  the  taking  of  any  such  land  unless  the  taking 
thereof  be  shown  on  the  plan  originally  filed  or  be  recommended  by  the  re- 
port of  the  commission  appointed  under  section  six.  The  decree  of  the 
court,  if  it  orders  any  land  to  be  taken,  shall  be  accompanied  by  a  plan 
therein  referred  to  approved  by  the  court  and  showing  the  taking  decreed. 

Section  9.  The  court  may  in  its  discretion  at  any  time  before  the 
expiration  of  the  thirty  days  allowed  for  appeal  in  section  six,  permit  not  less 
than  ten  taxpayers  of  the  Commonwealth,  if  a  taking  under  this  act  is 
made  by  the  Commonwealth,  or  not  less  than  ten  taxpayers  of  the  city  in 
which  the  land  is  situated,  if  the  taking  is  made  by  a  city,  to  appeal  from 
so  much  of  the  order  under  which  said  taking  is  made  as  relates  to  land 
outside  the  boundaries  of  the  public  work,  or  may  at  any  time  while  an 
appeal  taken  by  an  owner  under  section  six  is  pending,  permit  such  taxpayers 
to  appear  and  be  heard  by  counsel  and  to  present  evidence  and  examine 
witnesses  before  the  commission  and  the  court  in  relation  to  such  appeal. 

Section  10.  A  certified  copy  of  the  decree,  and  if  any  land  is  to  be 
taken,   of  the  accompanying  plan,   shall,   within    fourteen   days   after   the 


81 

making  of  the  decree,  be  filed  in  the  registry  of  deeds  for  the  district 
within  which  the  land  in  c[iiestion  is  situated,  and  the  decree  shall  be 
recorded  and  indexed.  When  the  decree  ordering  a  taking  is  so  filed  it 
shall  constitute  a  taking  of  the  land  decreed  to  be  taken. 

Section  11.  The  Commonwealth  or  the  city  shall  not  take  possession 
of  the  land  proposed  to  be  taken  outside  the  boundaries  of  the  public  work, 
nor  enter  thereon  except  for  the  purpose  of  preliminary  examinations 
and  surveys,  in  any  event  until  the  thirty  days  allowed  by  section  six  for 
an  appeal  have  expired ;  and,  if  such  an  appeal  is  taken,  until  the  making  of 
a  decree  by  the  court  as  provided  in  section  eight  and  filing  thereof  as  pro- 
vided in  section  ten. 

Section  12.  In  any  case  where  the  Commonwealth  or  the  city  is 
required  by  any  law  in  force  at  the  time  to  award  damages  for  land  taken  or 
proposed  to  be  taken  for  a  public  work  of  the  same  nature  as  that  with 
regard  to  which  it  is  proposed  to  take  land  under  this  act,  no  plan  or  memo- 
randum shall  be  filed  under  the  provisions  of  section  five  unless  and  until 
damages  have  been  so  awarded ;  and  the  provisions  of  such  law  shall  apply 
to  the  making  of  such  award.  In  awarding  damages  as  aforesaid  the 
Commonwealth  or  the  city  shall  make  separate  awards  for  different  parts 
of  the  same  parcel  proposed  to  be  taken  and  respectively  within  and  outside 
the  boundaries  of  the  proposed  public  work. 

Section  13.  Damages  for  land  taken  pursuant  to  this  act  shall  be 
assessed  and  recovered  as  in  the  case  of  land  taken  for  highways ;  and  any 
owner  part  of  whose  land  is  taken  may,  with  regard  to  any  other  part  of 
his  land  outside  of  the  boundaries  of  the  public  work  which  was  proposed 
to  be  taken  and  which  is  not  taken,  recover  damages  sustained  by  reason  of 
preliminary  surveys  and  examinations  and  damages  for  deprivation  of  the 
use  of  land  as  provided  in  section  five,  in  the  same  proceeding  in  which 
he  recovers  damages  for  said  part  of  his  land  taken. 

Section  14.  Any  laws  at  the  time  in  force  providing  for  raising  or 
obtaining  money  to  pay  for  land  taken  for  a  public  work  of  the  same  nature 
as  that  for  which  land  is  taken  or  purchased  under  the  provisions  of  this  act 
shall  apply  with  regard  to  raising  or  obtaining  money  to  pay  damages 
awarded  or  recovered  under  the  provisions  of  sections  twelve  and  thirteen 
or  for  land  purchased  under  the  provisions  of  section  nineteen. 

Section  15.  The  Commonwealth  or  the  city,  as  the  case  may  be,  shall 
determine  within  six  months  after  the  completion  of  any  public  work 
for  which  land  is  taken  under  this  act,  or  within  six  months  after  the 
filing  of  a  final  decree  or  an  appeal  taken  under  this  act,  whichever  shall 
happen  later,  with  which  of  the  adjoining  properties  the  public  interests 
require  that  each  parcel  of  land,  if  any,  taken  outside  the  boundaries  of 
the  public  work  should  be  united ;  and  shall,  within  said  six  months,  notify 
the  owner  by  registered  letter  mailed  to  such  owner,  and  shall  annex  to  the 
notice  a  copv  of  this  section. 


82 

Section  16.  If  such  owner  or  some  person  on  his  behalf  shall  within 
two  weeks  from  the  mailing  of  such  notice  notify  in  writing  the  Common- 
wealth or  the  city  that  such  owner  wishes  for  an  appraisal  of  such  parcel, 
the  Commonwealth  or  the  city  shall  cause  such  parcel  to  be  appraised  by 
three  competent  and  disinterested  persons,  one  of  whom  shall  be  appointed 
by  the  Commonwealth  or  the  city,  one  by  said  owner  and  one  by  the 
superior  court  for  the  county;  provided,  however,  that  the  Commonwealth 
or  the  city  and  said  owner  may  in  writing  appoint  a  sole  appraiser.  Said 
appraiser  or  appraisers  shall  forthwith  after  his  or  their  appointment 
view  the  property  and  determine  the  fair  value  of  such  parcel,  and  shall 
make  written  report  to  the  Commonwealth  or  the  city  of  the  same.  The 
reasonable  f^es  and  expenses  of  the  appraiser  or  appraisers  shall  be  paid 
by  the  Commonwealth  or  the  city.  The  Commonwealth  or  the  city  shall 
forthwith  by  writing  mailed  to  such  owner  offer  such  parcel  to  such  owner 
at  the  value  as  determined  by  the  report  of  a  majority  of  such  appraisers, 
or  by  that  of  the  sole  appraiser  in  case  of  the  appointment  of  one  appraiser. 

Section  17.  If  such  owner  shall  in  writing  accept  said  offer  within  two 
weeks  after  the  date  when  the  same  is  mailed  to  such  owner,  the  Common- 
wealth or  the  city  shall  convey  such  parcel  to  such  owner  on  payment  of 
the  purchase  money  to  the  Commonwealth  or  the  city  as  the  case  may  be 
within  thirty  days  after  the  acceptance  of  the  offer.  The  conveyance  shall 
be  by  deed,  with  or  without  covenants  of  title  and  warranty,  executed  and 
acknowledged  in  the  name  and  behalf  of  the  Commonwealth  or  the  city  by 
the  officers  or  board  which  have  or  has  taken  such  parcel,  or  by  their  or 
its  successors  or  successor,  and  may  be  made  subject  to  such  restrictions  as 
the  Commonwealth  or  city  may  in  writing  have  notified  the  appraisers 
or  appraiser  at  the  time  of  their  or  his  appointment  would  be  imposed 
on  such  parcel. 

Section  18.  If  such  owner  fails  to  accept  the  offer  within  the  time 
limited,  or  having  accepted  it  fails  to  make  payment  or  tender  of  the  purchase 
money  within  one  month  thereafter,  the  Commonwealth  or  the  city,  if  it  does 
not  take  said  adjoining  property  under  the  provisions  of  section  twenty- 
nine,  may  at  any  time  thereafter  sell  such  parcel  at  public  auction. 

Section  19.  The  Commonwealth  or  the  city  may  acquire  by  gift  or 
purchase  any  land  the  taking  of  which  may  be  authorized  by  this  act,  and 
shall  hold  and  dispose  of  the  same  as  in  the  case  of  land  taken  under  this 
act. 

Section  20.  The  court  shall  fix  the  compensation  and  expenses  of 
the  commissioners  appointed  under  section  six,  including  in  such  expenses 
the  compensation  of  any  expert  or  experts  employed  under  the  provisions 
of  section  seven ;  and  the  amount  so  fixed  shall  be  paid  by  the  county. 

Section  21.  Where  the  court,  as  provided  in  section  eight,  decrees  the 
taking  of  part  but  not  all  of  the  land  shown  as  proposed  to  be  taken  on  a 
plan  filed  in  accordance  with  section  five  and  outside  the  boundaries  of 


83 

the  proposed  public  work,  or  decrees  that  none  of  such  land  shall  be  taken, 
the  restrictions  on  the  erection  or  alteration  of  buildings  on  such  land  or 
part  thereof  not  taken,  and  as  to  making  additions  thereto,  imposed  by 
section  five  shall  cease  and  determine  from  the  date  of  the  filing  of  the 
decree. 

Section  22.  A  city  may  at  any  time,  by  proceedings  under  chapter 
forty-eight  of  the  Revised  Laws  and  acts  in  amendment  thereof  and  in 
addition  thereto  or  under  any  act  giving  it  power  to  lay  out,  alter,  relocate 
or  widen  ways,  or  in  connection  with  proceedings  under  this  act,  take  in 
fee  any  land  in  which  it  has  previously  taken  or  acquired  an  easement  for 
a  public  highway,  or  may  acquire  such  fee  by  gift  or  purchase. 

Section  23.  In  the  case  of  any  public  work  for  which  land  is  taken 
under  this  act,  betterments  may  be  assessed  upon  any  property  not  taken 
in  cases  where  any  law  in  force  at  the  time  authorize  their  assessment 
when  land  is  taken  for  a  public  work  of  the  same  nature  as  that  for  which 
it  is  taken  under  this  act.  Such  betterments  shall  be  assessed  in  accordance 
with  the  provisions  of  such  law. 

Section  24.  The  powers  conferred  by  this  act  shall  be  in  addition  to 
those  conferred  on  public  officers  and  boards  by  existing  law,  and  shall 
apply  in  the  case  of  any  public  work  situate  within  the  limits  of  any  city, 
notwithstanding  any  limitations  with  regard  to  taking,  laying  out,  widening, 
relocating  or  altering  or  other  public  works  in  the  city  of  Boston  or  else- 
where. 

Section  25.  Whenever  there  is  a  taking  under  the  provisions  of  this 
act  of  land  within  the  boundaries  of  a  public  work,  such  taking  shall  be 
effectual  as  of  the  date  of  the  filing  under  the  provisions  of  section  five  of 
the  plan  described  in  that  section;  and  whenever  there  is  a  taking  of  land 
outside  of  such  boundaries  either  by  reason  of  the  time  allowed  by  section 
six  for  an  appeal  having  elapsed  without  such  an  appeal  being  made,  or  by 
a  decree  made  as  provided  in  section  eight  and  filed  as  provided  in  section 
ten,  the  last  mentioned  taking  shall  relate  back  and  become  eff'ectual  as  of 
the  date  of  the  filing  of  said  plan  as  provided  in  section  five. 

Section  26.  The  posting,  publication,  mailing  or  serving  of  notices 
under  this  act  may  be  done  by  any  officer  or  member  of  a  board  acting  on 
behalf  of  the  Commonwealth  or  city  with  regard  to  the  taking  in  connection 
with  which  the  notice  is  given,  or  member  of  a  commission  appointed  under 
the  provisions  of  this  act,  or  his  or  their  servants  or  agents.  Such  posting, 
publishing,  mailing  or  serving  may  be  done  by  copy  and  the  return  thereof 
by  any  such  officer  or  member  of  a  board  or  commission  shall  be  conclusive 
evidence  of  such  posting,  publication,  mailing  or  service.  Such  a  return 
may  be  recorded  in  any  registry  of  deeds  in  which  any  of  the  land  included 
in  such  taking  lies,  but  such  record  shall  not  be  necessary  to  the  conclusive- 
ness of  such  return. 

Section  27.     In  case  the  land  included  in  the  same  taking  or  proposed 


84 

taking  under  this  act  lies  in  two  or  more  counties  or  districts,  the  memo- 
randum plans  and  decrees  with  regard  thereto  shall  be  recorded  in  the 
registries  of  deeds  for  each  district ;  but  where  land  proposed  to  be  taken 
outside  the  boundaries  of  the  public  work  lies  in  more  than  one  county  an 
appeal  from  the  action  of  the  Commonwealth  or  city  as  provided  in  section 
six  shall  be  taken  in  one  county  only,  and  appeals  with  regard  to  land  lying 
in  the  other  county  or  counties  shall  be  taken  in  the  same  proceeding  in 
which  an  appeal  is  first  made.  If  an  appeal  is  made  in  two  or  more  counties 
at  the  same  time  it  shall  be  prosecuted  in  the  court  for  the  county  in  which 
the  greater  part  of  the  area  of  the  land  proposed  to  be  taken  lies. 

Section  28.  The  Commonwealth  or  city,  as  the  case  may  be,  may  by 
deed  executed,  acknowledged  and  recorded  according  to  the  laws  of  the 
Commonwealth,  abandon  any  land  taken  by  it  under  the  provisions  of  this 
act,  and  such  abandonment  shall  revest  the  title  thereof,  as  if  it  had  never 
been  taken,  in  the  persons,  their  heirs  and  assigns  in  whom  it  was  vested 
at  the  time  of  the  taking.  Such  an  abandonment  may  be  pleaded  in  reduc- 
tion of  damages  in  any  suit  therefor  on  account  of  such  taking. 

Section  29.  If  the  owner  of  property  adjoining  a  parcel  taken  under 
this  act  and  outside  the  boundaries  of  a  public  work  fails  to  accept  an  offer 
to  sell  such  parcel  to  such  owner  made  under  the  provisions  of  section  six- 
teen, or  having  accepted  such  offer,  fails  to  make  payment  or  tender  of  the 
purchase  money  within  thirty  days  thereafter,  the  Commonwealth  or  city 
shall  cause  such  parcel  to  be  sold  by  public  auction,  subject  to  such  restric- 
tions as  the  Commonwealth  or  city  may  impose.  Land  sold  under  this  sec- 
tion shall  be  conveyed  to  the  purchaser  in  the  same  manner  as  land  conveyed 
under  the  provisions  of  section  seventeen. 

Section  30.     This  act  shall  take  effect  upon  its  passage. 

D.    Acts  of  Massachusetts   1912,   Chapter   186.(1) 

Section  1.  The  city  of  Worcester  is  hereby  authorized  to  take  in  fee 
for  the  purpose  of  widening  Belmont  street,  so-called,  in  that  city,  the  whole 
or  parts  of  a  strip  of  land,  not  exceeding  one  hundred  and  sixty  feet  in  depth, 
from  the  southerly  side  of  Belmont  street  between  the  point  of  intersection 
of  the  easterly  line  of  Warden  street  with  the  southerly  line  of  Belmont  street 
easterly  to  the  point  of  intersection  of  the  westerly  line  of  Lake  Avenue 
with  the  southerly  line  of  Belmont  street. 

Section  2.  After  so  much  of  the  land  or  property  as  is  taken  by  the 
city  for  the  purpose  of  widening  Belmont  street  on  the  southerly  side  there- 
of, in  accordance  with  the  provisions  of  section  one,  has  been  appropriated 
for  such  street  as  is  needed  therefor,  the  city  may  sell  the  remainder  for 
value,  with  or  without  suitable  restrictions. 

Section  3.     This  act  shall  take  effect  upon  its  passage. 


(1)  This  is  the  only  special  legislative  act  passed  on  the  subject  of  excess  con- 
demnation in  Massachusetts  since  the  adoption  of  the  constitutional  amendment  in  1911. 


85 

E.     Laws  of  Ohio    1904.    Annotated  Statutes  C.  2,   p.  755.(1) 

Section  10.  All  municipal  corporations  shall  have  power  to  appropri- 
ate, enter  upon  and  hold,  real  estate  within  their  corporate  limits  for  the 
following  purposes : 

12th.  For  establishing  esplanades,  boulevards,  parkways,  park  grounds, 
and  public  reservations  in,  around  and  leading  to  public  buildings  and  for 
the  purpose  of  reselling  such  land  w^ith  reservations  in  the  deeds  of  such 
resale  as  to  the  future  use  of  said  lands  so  as  to  protect  public  buildings 
and  their  environs  and  to  preserve  the  view,  appearance,  light,  air  and  use- 
fulness of  public  grounds  occupied  by  public  buildings  and  esplanades  and 
parkways  leading  thereto. 

F.    Laws  of  Pennsylvania   1907,   No.  315.(1) 

Section  1.  Be  it  enacted,  &c.,  That  it  shall  be  lawful  for,  and  the  right 
is  hereby  conferred  upon,  the  cities  of  this  Commonwealth  to  purchase, 
acquire,  enter  upon,  take,  use,  and  appropriate  private  property,  for  the 
purpose  of  making,  enlarging,  extending,  and  maintaining  public  parks, 
parkways,  and  playgrounds  within  the  corporate  limits  of  such  cities,  when- 
ever the  councils  thereof  shall,  by  ordinance  or  joint  resolution,  determine 
thereon :  Provided,  That  where  such  private  property  is  outside  of  the  city, 
it  may  be  annexed  thereto  by  ordinance  of  said  city :  And  provided,  That 
where  any  poorhouse  properties  are  so  taken,  and  such  cities  shall  have 
made  adequate  provisions  for  thereafter  accommodating  and  supporting  the 
poor  of  the  districts,  wards,  and  townships  within  such  cities,  wherein  such 
poorhouses  are  located,  nominal  damages  only  shall  be  allowed  for  such 
taking,  and  the  land  shall  be  held  on  condition  that  such  city  shall  continue 
to  make  adequate  provisions  for  the  poor  of  such  districts,  wards,  or  town- 
ships. 

Section  2.  It  shall  be  lawful  for,  and  the  right  is  hereby  conferred 
upon,  cities  of  this  Commonwealth  to  purchase,  acquire,  enter  upon,  take, 
use,  and  appropriate  neighboring  private  property,  within  two  hundred  feet 
of  the  boundary  lines  of  such  property  so  taken,  used,  and  appropriated  for 
public  parks,  parkways,  and  playgrounds,  in  order  to  protect  the  same  by 
the  resale  of  such  neighboring  property  with  restrictions,  whenever  the 
councils  thereof  shall,  by  ordinance  or  joint  resolution,  determine  thereon : 
Provided,  That  in  the  said  ordinance  or  joint  resolution,  the  councils  thereof 
shall  declare  that  the  control  of  such  neighboring  property,  within  two  hun- 
dred feet  of  the  boundary  lines  of  such  public  parks,  parkways,  or  play- 
grounds, is  reasonably  necessary,  in  order  to  protect  such  public  parks,  park- 


(1)  This  act,  which  was  passed  before  the  adoption  of  the  constitutional  amend- 
ment in  1912,  was  never  utilized. 

(1)  This  act  was  declared  unconstitutional  in  Philadelphia  Mutual  Life  Insurance 
Company  v.  Philadelphia.  88  Atl.  904. 


86 

ways,  or  playgrounds,  their  environs,  the  preservation  of  the  view,  appear- 
ance, Hght,  air,  health,  or  usefulness  thereof. 

Section  3.  That  it  shall  be  lawful  for,  and  the  right  is  hereby  con- 
ferred upon,  the  cities  of  this  Commonwealth  to  resell  such  neighboring 
property,  with  such  restrictions  in  the  deeds  of  resale  in  regard  to  the  use 
thereof  as  will  fully  insure  the  protection  of  such  public  parks,  parkways, 
and  playgrounds,  their  environs,  the  preservation  of  the  view,  appearance, 
light,  air,  health  and  usefulness  thereof,  whenever  the  councils  thereof  shall 
by  ordinance  of  joint  resolution,  determine  thereon. 

Section  4.  The  taking,  using,  and  appropriating,  by  the  right  of  emi- 
nent domain  as  herein  provided,  of  private  property  for  the  purpose  of  mak- 
ing, enlarging,  extending,  and  maintaining  public  parks,  parkways,  and  play- 
grounds, and  of  neighboring  property,  within  two  hundred  feet  of  the 
boundary  lines  of  such  public  parks,  parkways,  and  playgrounds,  in  order 
to  protect  such  public  parks,  parkways,  and  playgrounds,  their  environs,  the 
preservation  of  the  view,  appearance,  light,  air,  health,  and  usefulness 
thereof,  by  reselling  such  neighboring  property,  with  such  restrictions  in 
the  deeds  of  resale  as  will  protect  said  property,  so  taken  for  the  aforesaid 
purpose,  is  hereby  declared  to  be  taking,  using,  and  appropriating  of  such 
private  property  for  public  use :  Provided,  however.  That  the  proceeds  aris- 
ing from  the  resale  of  any  such  property,  so  taken,  shall  be  deposited  in  the 
treasury  of  said  cities,  and  be  subject  to  general  appropriation  by  the 
councils  of  said  city. 

Section  5.  In  all  cases  wherein  cities  of  this  Commonwealth  shall 
hereafter  take,  use,  and  appropriate  private  property  for  the  aforesaid  pur- 
poses, by  ordinance  or  joint  resolution,  if  the  compensation  and  damages 
arising  therefrom  cannot  be  agreed  upon  by  the  owners  thereof  and  such 
cities,  such  compensation  and  damages  shall  be  considered,  ascertained, 
determined,  awarded,  and  paid  in  the  manner  provided  in  an  act  entitled, 
"  An  act  providing  for  the  manner  of  ascertaining,  determining,  awarding, 
and  paying  compensation  and  damages  in  all  cases  where  municipalities 
of  this  Commonwealth  may  hereafter  be  authorized  by  law  to  take,  use, 
and  appropriate  private  property  for  the  purpose  of  making,  enlarging, 
and  maintaining  public  parks  within  the  corporate  limits  of  such  munici- 
pality," approved  the  eighth  day  of  June,  Anno  Domini  one  thousand  eight 
hundred  and  ninety-five. 

Section  6.  All  acts  or  parts  of  acts  inconsistent  herewith  are  hereby 
repealed. 

G.    Acts  of  Connecticut  1907,  No.  61.(1) 

Section  7.  Said  city  of  Hartford,  acting  through  said  commission  or 
otherwise,  shall  have  power  to  appropriate,  enter  upon,  and  hold  in  fee 
real  estate  within  its  corporate  limits   for  establishing  esplanades,  boule- 

(1)  Hartford  has   on   several   occasions   used   this   act   with   reference   to   small 
gores. 


87 

yards,  parkways,  park  grounds,  streets,  highways,  squares,  sites  for  public 
buildings  and  reservations  in  and  about  and  along  and  leading  to  any  or  all 
of  the  same;  and,  after  the  establishment,  layout,  and  completion  of  such 
improvements,  may  convey  any  real  estate  thus  acquired  and  not  necessary 
for  such  improvements,  with  or  without  reservations  concerning  the  future 
use  and  occupation  of  such  real  estate  so  as  to  protect  such  public  w^orks 
and  improvements  and  their  environs,  and  to  preserve  the  view,  appearance, 
light,  air,  and  usefulness  of  such  public  works. 


H.    Laws  of  Oregon  1913,  Chapter  269.(1) 

Section  2.  It  shall  be  lawful  for,  and  the  right  is  hereby  conferred 
upon  any  incorporated  city  of  this  State  having  10,000  or  more  inhabitants 
to  purchase,  acquire,  take,  use,  enter  upon  and  appropriate  land  and  prop- 
erty in  excess  of  what  may  be  needed  for  any  such  public  squares,  parks, 
or  playgrounds ;  provided,  however,  that  in  the  ordinance  providing  there- 
for the  municipal  authorities  thereof  shall  specify  and  describe  the  land 
authorized  to  be  taken,  purchased,  acquired,  used  and  appropriated,  which 
land  shall  not  embrace  more  than  200  feet  beyond  the  boundary  line  of 
the  property  to  be  used  for  such  public  squares,  parks,  or  playgrounds,  in 
order  to  protect  the  same  by  the  re-sale  of  such  neighboring  property  with 
restrictions  whenever  the  councils  thereof  shall  by  ordinance  determine 
thereon ;  provided ;  further,  that  in  the  said  ordinance  the  councils  thereof 
shall  declare  that  the  control  of  such  neighboring  property  within  200  feet 
of  the  boundary  lines  of  such  public  squares,  parks  or  playgrounds,  is 
reasonably  necessar)-,  in  order  to  protect  such  public  squares,  parks  or  play- 
grounds, their  environs,  the  preservation  of  the  view,  appearance,  light, 
air,  health  or  usefulness  thereof. 

Section  3.  That  after  so  much  of  said  land  and  property  referred 
to  in  Section  2  of  this  act  has  been  appropriated,  as  is  needed,  for  public 
squares,  parks  or  playgrounds  aforesaid,  the  municipal  authorities  of  such 
city  may  by  ordinance  authorize  the  sale  of  the  remainder  of  such  land  or 
property  and  impose  such  restrictions  in  any  deed  or  deeds  of  re-sale  as  may 
be  deemed  necessary  or  proper ;  provided,  however,  that  such  ordinance  shall 
specify  correctly  and  describe  the  land  or  property  to  be  sold,  and  the  res- 
trictions in  regard  to  the  use  thereof  as  will  fully  insure  the  protection 
of  such  public  squares,  parks  or  playgrounds,  their  environs,  the  preserva- 
tion of  the  view,  appearance,  light,  air,  health  or  usefulness  thereof,  when- 
ever the  councils  thereof  shall  by  ordinance  determine  thereon  and  which 
are  to  be  imposed  and  inserted  in  such  deed  or  deeds  of  re-sale. 

Section  4.  That  the  taking,  using,  acquiring  and  appropriating  of  pri- 
vate property  for  any  of  the  purposes  herein  specified,  is  hereby  declared 


(1)  This  act  does  not  apply  to  Portland,  as  the  legislature  cannot  amend  the  char- 
ter of  that  city.    Branch  v.  Albee,  142  Pac,  598. 


S8 

to  be  taking,  using  and  appropriating  such  private  property  for  public  use; 
provided,  however,  that  the  proceeds  arising  from  the  re-sale  of  any  neigh- 
boring property  taken  in  excess  of  what  may  be  necessary  for  the  actual 
construction,  opening,  widening,  extending  and  laying  out  of  any  such  public 
square,  park  or  playground,  as  in  this  act  provided,  shall  be  deposited  in  the 
treasury  of  said  city  and  be  used  in  the  payment  of  the  interest  and  as 
a  sinking  fund  to  retire  any  bond  issues  herein  authorized.  Any  surplus 
arising  from  such  transaction  shall  be  turned  over  to  and  for  the  use  of 
the  park  department  of  such  city. 

I.    Acts  of  Virginia  1905,  Chapter  194.(1) 

Section  1.  Be  it  enacted  by  the  general  assembly  of  Virginia,  That  any 
city  or  town  of  this  Commonwealth  may  acquire  by  purchase,  gift,  or 
condemnation  property  adjoining  its  parks,  or  plats  on  which  its  monuments 
are  located,  or  other  property  used  for  public  purposes  or  in  the  vicinity 
of  such  parks,  plats  or  property,  which  is  used  and  maintained  in  such  a 
manner  as  to  impair  the  beauty,  usefulness  or  efficiency  of  such  parks,  plats 
or  public  property,  and  may  likewise  acquire  property  adjacent  to  any  street, 
the  topography  of  which,  from  its  proximity  thereto,  impairs  the  convenient 
use  of  such  street,  or  renders  impracticable  without  extraordinary  expense, 
the  improvement  of  the  same,  and  the  city  or  town  so  acquiring  any  such 
property  may  subsequently  dispose  of  the  property  so  acquired,  making 
limitations  as  to  the  uses  thereof,  which  will  protect  the  beauty,  usefulness, 
efficiency  or  convenience  of  such  parks,  plats  or  property. 

Section  2.  This  act  shall  be  in  force  on  and  after  ninety  days  from  the 
adjournment  of  the  general  assembly  of  Virginia. 

K.    Laws  of  Maryland   1908,   Chapter   166.(1) 

Section  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
the  sub-division,  entitled  "  Condemnation  of  Property,"  of  section  6  of 
article  4  of  the  Public  Local  Laws  of  Maryland,  title  "  City  of  Baltimore," 
as  enacted  by  chapter  123  of  the  Acts  of  the  General  Assembly  of  Maryland 
of  the  year  1898,  and  also  the  paragraph  added  to  the  same  section,  imme- 
diately after  the  above-mentioned  sub-division,  by  chapter  397  of  the  Acts 
of  1906,  of  the  General  Assembly  of  Maryland,  entitled  "  An  Act  to  add  a 
new  paragraph  to  section  6  of  article  4,  entitled  "  City  of  Baltimore,"  of  the 
Code  of  Public  Local  Laws  of  Maryland,  to  come  in  immediately  after  the 
conclusion  of  the  paragraph  in  said  section,  entitled  "  Condemnation  of 
Property,"  and  to  be  entitled  ''  Condemnation  of  Property  for  Esplanades 


(1)   No  city  has  as  yet  taken  advantage  of  this  act. 

(1)  As  interpreted  by  the  courts  in  Bo)id  v.  Mayor,  and  City  Council  of  Baltimore, 
116  Md.  683.  this  act  does  not  confer  the  power  of  excess  condemnation  upon  Balti- 
more but  only  the  power  to  acauire  such  additional  adjacent  land  as  might  be  necessary 
for  connections,  cuts,  fills,  parking,  etc. 


89 

and  the  Like,"  be  and  the  same  are  hereby  repealed  and  re-enacted  so  as  to 
read  as  follows :  Condemnation  of  Property — To  acquire  by  purchase  or 
condemnation  any  land  or  any  interest  therein  which  it  may  require  for 
schoolhouses,  enginehouses,  courthouses,  markets,  streets,  bridges  and  their 
approaches,  the  establishment  or  enlargement  of  parks,  squares,  gardens  or 
other  public  places,  the  establishment  of  esplanades,  boulevards,  parkways, 
park  grounds  or  public  reservations,  around,  adjacent,  opposite,  or  in  prox- 
imity or  leading  to  any  public  building  or  buildings,  or  which  it  may  require 
for  any  other  public  or  municipal  purpose;  and  also  any  and  all  land  and 
property  or  interest  in  land  and  property  adjoining  and  extending  such 
distance  as  may  be  adjudged  necessary  from  any  property  in  use  or  about 
to  be  acquired  for  such  esplanade,  boulevard,  parkway,  park  grounds  or 
public  reservation,  as  aforesaid,  the  use  of  which  said  adjacent  property  it 
may  be  deemed  necessary  or  beneficial  to  subject  to  lawful  restrictions  or 
control,  in  order  to  better  protect  or  enhance  the  usefulness  of  such  public 
building  or  buildings,  or  in  any  manner  to  promote  the  interests  of  the  public 
therein,  or  to  more  fully  effectuate  the  purposes  of  the  establishment  of  such 
esplanade,  boulevard,  parkway,  park  grounds  or  public  reservations ;  and  to 
sell  thereafter  such  adjacent  lands  or  property,  subject  to  such  reservations 
or  restrictions  as  to  the  subsequent  uses  thereof,  as  may  appear  advisable  for 
the  protection  of  such  public  building  or  buildings,  or  for  enhancing  the  use- 
fulness thereof,  or  in  any  manner  to  promote  the  interests  of  the  public 
therein,  or  for  better  insuring  the  protection  or  usefulness  of  such  esplanade, 
boulevard,  parkway,  parkgrounds  or  public  reservations,  or  in  any  manner 
to  better  accomplish  the  purposes  and  serve  the  public  interests  for  which 
they  shall  have  been  or  shall  be  established.  The  Mayor  and  City  Council 
of  Baltimore  may  prescribe  the  procedure  for  condemnation  of  any  land  or 
property  situated  wholly  within  the  city  of  Baltimore  which  under  the  fore- 
going provisions  it  is  authorized  to  condemn,  but  such  procedure  as  the 
said  Mayor  and  City  Council  of  Baltimore,  may  adopt  shall  include  provi- 
sion for  reasonable  notice  to  the  owner  or  owners,  and  for  appeals  to  the 
Baltimore  City  Court  by  any  person  interested,  including  the  Mayor  and 
City  Council  of  Baltimore,  from  the  decision  of  any  commissioners  or 
other  persons  appointed  to  value  any  such  land  or  property,  or  interest 
therein.  Nothing  herein  contained  shall  be  construed  as  depriving  the  city 
of  any  power  of  condemnation  for  any  purpose  already  vested  in  it.  The 
Mayor  and  City  Council  of  Baltimore  shall  have  full  power  and  authority 
to  provide  by  ordinance  for  ascertaining  whether  any  and  what  amount  of 
benefits  will  accrue  to  the  owner  or  possessor  of  any  ground  or  improve- 
ments within  the  City  of  Baltimore  by  reason  of  the  establishment  or  en- 
largement of  any  parks,  squares,  gardens,  esplanades,  boulevards,  parkways, 
park  grounds,  public  reservations  or  other  public  places,  for  which  said 
owner  or  possessor  ought  to  pay  compensation,  and  to  provide  by  ordinance 
for  assessing  or  levying  the  amount  of  such  benefits  on  the  property  of  per- 


>_ 


90 

sons  so  benefited;  provided,  that  provision  is  made  therein  for  reasonable 
notice  to  the  person  or  persons  against  whom  such  benefits  are  to  be  assessed, 
and  provided  that  provision  be  made  for  appeals  to  the  Baltimore  City  Court 
by  any  person  or  persons  interested,  including  the  Mayor  and  the  City 
Council  of  Baltimore,  from  the  decision  of  any  board,  commissioners  or 
other  persons  appointed  or  authorized  to  assess  such  benefits. 

Section  2.  And  be  it  further  enacted,  That  this  Act  shall  take  effect 
from  the  date  of  its  passage. 

Appendix   III. 
Constitutional   Amendments    Adopted. 
A.    Amendment  to  Constitution  of  Massachusetts  Adopted    1911. 

Article  X,  Part  1.  The  legislature  may  by  special  acts  for  the  purpose 
of  laying  out,  widening  or  relocating  highways  or  streets,  authorize  the 
taking  in  fee  by  the  Commonwealth,  or  by  a  county,  city,  or  town,  of  more 
land  and  property  than  are  needed  for  the  actual  construction  of  such  high- 
way or  street ;  provided,  however,  that  the  land  and  property  authorized 
to  be  taken  are  specified  in  the  act  and  are  no  more  in  extent  than  would 
be  sufficient  for  suitable  building  lots  on  both  sides  of  such  highway  or 
street,  and  after  so  much  of  the  land  or  property  has  been  appropriated  for 
such  highway  or  street  as  is  needed  therefor,  may  authorize  the  sale  of  the 
remainder  for  value  with  or  without  suitable  restrictions. 

B.     Amendment  to  Constitution  of  New  York   Adopted    1913. 

Article  I,  Section  7.  The  legislature  may  authorize  cities  to  take  more 
land  and  property  than  is  needed  for  actual  construction  in  the  laying  out, 
widening,  extending  or  re-locating  parks,  public  places,  highways  or  streets ; 
provided,  however,  that  the  additional  land  and  property  so  authorized  to  be 
taken  shall  be  no  more  than  sufficient  to  form  suitable  building  sites  abutting 
on  such  park,  public  place,  highway  or  street.  After  so  much  of  the  land 
and  property  has  been  appropriated  for  such  park,  public  place,  highway  or 
street  as  is  needed  therefor,  the  remainder  may  be  sold  or  leased. 

C.     Amendment  to  Constitution  of  Ohio  Adopted   1912. 

Article  XVIII,  Section  10.  A  municipality  appropriating  or  otherwise 
acquiring  property  for  public  use  may  in  furtherance  of  such  public  use 
appropriate  or  acquire  an  excess  over  that  actually  to  be  occupied  by  the 
improvement,  and  may  sell  such  excess  with  such  restrictions  as  shall  be 
appropriate  to  preserve  the  improvement  made.  Bonds  may  be  issued  to 
supply  the  funds  in  whole  or  in  part  to  pay  for  the  excess  property  so  appro- 


91 

priated  or  otherwise  acquired,  but  said  bonds  shall  be  a  lien  only  against 
the  property  so  acquired,  for  the  improvement  and  excess,  and  they  shall  not 
be  a  liability  of  the  municipality  nor  be  included  in  any  limitation  of  the 
bonded  indebtedness  of  such  municipality  prescribed  by  law. 

D.    Amendment  to  Constitution   of  Wisconsin  Adopted    1912. 

Article  XI,  Section  3a.  The  State  or  any  of  its  cities  may  acquire  by 
gift,  purchase,  or  condemnation  lands  for  establishing,  laying  out,  widening, 
enlarging,  extending,  and  maintaining  memorial  grounds,  streets,  squares, 
parkways,  boulevards,  parks,  playgrounds,  sites  for  public  buildings,  and 
reservations  in  and  about  and  along  and  leading  to  any  or  all  of  the  same; 
and  after  the  establishment,  layout,  and  completion  of  suc'n  improvements, 
may  convey  any  such  real  estate  thus  acquired  and  not  necessary  for  such 
improvements,  with  reservations  concerning  the  future  use  and  occupation 
of  such  real  estate,  so  as  to  protect  such  public  work  and  improvements,  and 
their  environs,  and  to  preserve  the  view,  appearance,  light,  air,  and  useful- 
ness of  such  public  works. 


92 


New  York  City  Excess  Condemnation  Act. 

Local — New  York,  Kings,  Queens,  Richmond  and  Bronx  Counties. 

LAWS  OF  NEW  YORK.— By  Authority. 
CHAP.  593. 

AN  ACT  to  amend  the  Greater  New  York  charter,  in  relation  to  authorizing 
the  city  of  New  York  to  acquire  more  land  and  property  than  is  needed 
for  actual  construction  in  laying  out,  widening,  extending  or  relocating 
parks,  public  places,  highways  or  streets. 

Became  a  law  May  11,  1915,  with  the  approval  of  the  Governor.     Passed,  three-fifths 

being  present. 
Accepted  by  the  City. 

The  People  of  the  State  of  New  York,  represented  in  Senate  and  As- 
sembly, do  enact  as  follows: 

Section  1.  The  Greater  New  York  charter,  re-enacted  by  chapter 
four  hundred  and  sixty-six  of  the  laws  of  nineteen  hundred  and  one,  is 
hereby  amended  by  adding  two  new  sections  to  be  inserted  in  title  four, 
chapter  seventeen  thereof  after  section  nine  hundred  and  seventy,  to  be 
known  as  sections  nine  hundred  and  seventy-a  and  nine  hundred  and  sev- 
enty-b,  to  read  as  follows : 


Definitions. 


Excess  lands 
may  be 
acquired. 

Power  of 
board  of 
estimate. 


definitions;  power  to  condemn  excess  lands. 

§  970-a.  When  used  in  this  section  or  section  nine  hundred  and 
seventy-b  of  the  Greater  New  York  charter,  unless  otherwise  expressly 
stated,  or  unless  the  context  or  subject-matter  otherwise  requires,  the  word 
"  improvement  "  shall  be  construed  as  synonymous  with  the  phrase  "  laying 
out,  widening,  extending  or  relocating  a  park,  public  place,  highway  or 
street,"  or  with  the  phrase  "  acquisition  of  title  to  real  property  required 
for  laying  out,  widening,  extending  or  relocating  a  park,  public  place,  high- 
way or  street."  The  term  "  excess  lands,"  or  the  term  "  additional  lands," 
or  the  term  *'  additional  real  property  "  shall  each  be  construed  as  syn- 
onymous with  the  phrase  *'  real  property  in  addition  (or  additional)  to  the 
real  property  needed  (or  required)  for  laying  out,  widening,  extending  or 
relocating  a  park,  public  place,  highway  or  street."  "  The  board  "  shall 
be  construed  as  synonymous  with  the  "  board  of  estimate  and  apportion- 
ment." The  city  of  New  York  in  acquiring  real  property  for  any  improve- 
ment may  acquire  more  real  property  than  is  needed  for  the  actual  con- 
struction of  the  improvement.  The  board  of  estimate  and  apportionment 
may  authorize  the  city  of  New  York  to  acquire  additional  real  property  in 


93 

connection  with  any  improvement,  and  direct  that  the  same  be  acquired  with 

the  real  property  to  be  acquired  for  the  improvement ;  provided  that  such  on^j^o*,j°t 

additional  real  property  shall  be  not  more  than  sufficient  to  form  suitable 

building  sites  abutting  on  the  improvement.     The  title  which  the  city  of     ^*^^°  ^^' 

New  York  shall  acquire  to  additional  real  property  shall  in  every  case  be 

the  fee  simple  absolute.     Additional  real  property  shall  be  acquired  by  the  ^J^^^*^ 

city  in  connection  with  a  street  improvement  only  when  the  title  acquired  authorized. 

for  the  improvement  shall  be  in  fee.     The  acquisition  of  title  to  additional 

real  property  in  connection  with  an  improvement  shall  be  authorized  by  the 

board  in  the  same  manner  and  at  the  same  time  as  the  acquisition  of  title 

to  the  real  property  required  for  the  improvement  is  authorized.     When  the  Manner  of 

.  ...  .  .    .  acquiring 

board  shall  have  authorized  the  acquisition  of  title  to  additional  real  prop-  title. 
erty  in  connection  with  an  improvement,  title  to  such  additional  real  property 
shall  be  acquired  by  the  city  in  the  manner  and  according  to  the  procedure 
(except  in  such  respects  as  herein  set  forth)  provided  for  the  acquisition 
of  title  to  the  real  property  required  for  the  improvement  and  in  the  same 
proceeding  in  which  title  to  the  real  property  required  for  the  improvement 
shall  be  acquired.  When  the  board  shall  authorize  the  acquisition  of  addi- 
tional real  property  in  connection  with  any  improvement,  it  shall  cause  to 
be  prepared  and  shall  adopt  a  map  showing  the  real  property  to  be  ac-  ^^^p- 
quired  for  the  improvement  and  such  additional  real  property  in  connection 
with  the  real  property  to  be  acquired  for  the  improvement,  and  such  map, 
when  approved  by  the  mayor,  shall  be  certified  by  the  secretary  of  the  board 
and  filed,  prior  to  the  application  to  condemn  the  same,  as  follows :  One 
copy  thereof  in  the  office  in  which  conveyances  of  real  property  are  required 
by  law  to  be  recorded  in  each  county  in  which  the  real  property  or  any 
part  thereof  shown  on  such  map  is  situated ;  one  copy  thereof  in  the  office 
of  the  corporation  counsel ;  one  copy  thereof  in  the  office  of  the  president 
of  each  borough  in  which  the  real  property  or  any  part  thereof  shown  on 
such  map  is  situated,  and  one  copy  thereof  in  the  office  of  the  board.  When  Description. 
the  board  shall  have  authorized  the  acquisition  of  additional  real  property  in 
connection  with  any  improvement,  such  additional  real  property  shall  be 
separately  described  in  the  notice  of  application  to  condemn  by  the  supreme 
court  without  a  jury  or  in  the  notice  of  application  for  the  appointment  of 
commissioners  of  estimate,  as  the  case  may  be,  and  in  the  petition  presented 
on  any  such  application,  and  separately  shown  on  the  rule  map  attached  to 
the  petition  and  on  the  damage  map  in  the  proceeding,  and  said  notice  and 
petition  shall  state  what  part  of  the  real  property  to  be  condemned  is  re- 
quired for  the  improvement,  and  what  part  thereof  is  to  be  acquired  as 
additional  real  property.  The  acquisition  of  such  additional  real  property,  Acquisition 
when  authorized  by  the  board,  shall  be  deemed  to  be  for  a  public  purpose,  public 
In  a  proceeding  in  which  additional  real  property  shall  be  acquired,  the 
board,  by  a  three-fourths  vote,  may  direct  that  on  the  date  of  the  entry  of 
the  order  granting  the  application  to  condemn  by  the  supreme  court  without  vest!^ 


94 

a  jury,  or  on  the  date  of  the  fihng  of  the  oaths  of  the  commissioners  ap- 
pointed by  the  court,  as  the  case  may  be,  or  on  a  date  after  either,  specified 
in  the  resolution  of  the  board,  the  title  to  the  whole  but  not  less  than  the 
whole  of  such  additional  real  property  to  be  acquired  in  the  proceeding  shall 
vest  in  the  city  of  New  York,  provided  that  such  resolution  shall  also  direct 
the  vesting  in  said  city  simultaneously  of  the  title  to  all  of  the  real  property 
being  acquired  in  the  proceeding  for  the  improvement ;  except  that  in  a  pro- 
ceeding involving  the  acquisition  of  title  to  additional  real  property  in  con- 
nection with  the  acquisition  of  title  to  real  property  required  for  a  street, 
highway  or  public  place,  the  board  shall  not  be  required  to  vest,  at  one  time, 
the  title  to  all  the  additional  real  property  to  be  acquired,  provided,  however, 
that  in  vesting  title  to  parts  of  said  additional  real  property  every  such  part 
shall  be  of  at  least  a  block  length  along  the  improvement,  and  that  no  frac- 
tional portion  of  a  block  shall  be  contained  in  any  such  part,  and  provided 
that  said  board  shall  also  direct  that  all  the  real  property  required  for  the 
street,  highway  or  public  place  in  such  block  or  blocks  shall  vest  in  the  city 
simultaneously.  Upon  the  date  of  the  entry  of  such  order  granting  the  ap- 
plication to  condemn  or  upon  the  date  of  the  filing  of  such  oaths,  as  the  case 
may  be,  or  on  such  date  after  either,  as  may  be  specified  by  said  board,  the 
city  of  New  York  shall  be  and  become  seized  in  fee  simple  absolute  to  such 
additional  real  property.  In  all  other  cases,  except  as  herein  otherwise  pro- 
vided, title  in  fee  simple  absolute  to  such  additional  real  property  as  may 
be  acquired  in  any  such  proceeding  shall  vest  in  the  city  of  New  York  upon 
the  filing  of  the  final  decree  of  the  court,  or  upon  the  entry  of  the  order  of 
the  court  confirming  the  report  of  the  commissioners  of  estimate,  as  the 
case  may  be,  as  to  such  additional  real  property ;  and  the  reversal  on  appeal 
of  the  final  decree  or  of  the  order  confirming  the  report,  as  the  case  may 
be,  or  of  any  part  of  either,  shall  not  operate  to  divest  the  city  of  title  to 
any  of  the  real  property  so  acquired.  In  a  proceeding  in  which  excess  lands 
shall  be  acquired,  the  board  shall  not  have  power  to  direct  the  vesting  of 
title  in  the  city  to  the  real  property  required  for  the  improvement  without 
also  directing  the  vesting  of  title  in  the  city  simultaneously  to  the  excess 
lands  being  acquired  in  the  proceeding  in  connection  with  the  improvement, 
except  that  the  board  may,  in  the  manner  in  this  section  provided,  direct  that 
title  to  the  real  property  required  for  a  street,  highway  or  public  place  shall 
vest  in  the  city  of  New  York  in  any  block  of  such  street,  highway  or  public 
place  abutting  which  no  excess  lands  are  taken.  In  any  proceeding  in  which 
excess  lands  shall  be  acquired,  when  title  to  any  part  less  than  the  whole  of 
the  real  property  required  for  the  street,  highway  or  public  place  in  any  one 
block  thereof,  between  legally  existing  public  streets,  shall  vest  in  said 
city  upon  and  by  virtue  of  the  entry  of  the  decree  of  the  court  finally  de- 
termining the  awards  for  damages  therefor,  or  on  the  date  of  the  entry  of 
the  order  confirming  the  report  of  the  commissioners  of  estimate  in  rela- 
tion thereto,  as  the  case  may  be,  title  to  the  remainder  of  the  real  property 


95 

required  for  the  street,  highway  or  pubHc  place  in  the  same  block  and  title 
to  the  additional  lands  to  be  acquired  in  the  proceeding  abutting  on  the 
street,  highway  or  public  place  in  the  same  block,  shall  vest  in  said  city 
simultaneously,  and  the  reversal  on  appeal  of  the  final  decree  of  the  court 
or  of  the  order  confirming  the  report  of  commissioners,  as  the  case  may  be, 
or  of  any  part  of  either  shall  not  operate  to  divest  the  city  of  title  to  any  of 
the  real  property  so  acquired  for  the  street,  highway  or  public  place  in  the 
same  block  or  to  the  additional  lands  abutting  thereon.     Upon  the  vesting  Taking 
of  title  in  the  city  of  New  York,  as  in  this  section  provided,  to  any  such  addi- 
tional lands  and  to  lands  required  for  the  improvement,  the  city  of  New 
York,  or  any  person  acting  under  its  authority,  may  immediately,  or  at  any 
time  thereafter,  take  possession  of  the  additional  lands  so  vested  and  of 
the  real  property  required  for  the  improvement  so  vested,  or  any  part  or 
parts  thereof,  without  any  suit  or  proceeding  at  law  for  that  purpose.     In  Cession. 
a  proceeding  in  which  additional  lands  shall  have  been  authorized  to  be 
acquired  in  connection  with  the  improvement,  an  owner  may  not  convey  to 
the  city  of  New  York  any  part  of  the  real  property  to  be  acquired  for  the 
improvement,  except  upon  the  approval  of  the  board  of  estimate  and  ap- 
portionment.    After  the  institution  of  a  proceeding  pursuant  to  this  title,   pr'Jc^e^mgs 
the  board  of  estimate  and  apportionment  may  amend  the  proceeding  by   ofeJdudinI 
authorizing  the  acquisition  of  lands  additional  to  those  required   for  the  ^^^^^^s  lands. 
improvement,  provided  that  title  shall  not  have  vested  in  the  city  of  New 
York  to  any  parcel  of  real  property  to  be  acquired  for  the  improvement 
within  the  block  between  legally  existing  public  streets,  embracing  the  ad- 
ditional lands  sought  to  be  acquired.     The  said  board  may  also  amend  any 
proceeding  so  as  to  exclude  any  or  all  additional  lands  being  acquired  in  the 
proceeding,  provided  title  to  such  additional  lands  shall  not  have  vested 
in  the  city.     The  amendment  shall  be  made  in  the  manner  provided  in  this 
title,  and  thereafter  the  proceeding  shall  be  conducted  in  the  same  manner 
as  if  the  additional  lands  included  or  excluded  by  the  amendment  had  been 
included  or  had  not  been  included  in  the  proceeding  at  the  time  of  the  insti- 
tution thereof.     In  case  title  to  the  real  property  required  for  the  improve-  interest  on 
ment  and  to  the  additional  lands  shall  vest  in  the  city  prior  to  the  entry  of 
the  final  decree  or  order  confirming  the  report  of  the  commissioners,  as 
the  case  may  be,  interest  on  the  entire  amount  due  to  the  owner  for  the  real 
property  acquired   for  the  improvement,  or   for  the   excess  lands,   or   for 
both,  from  the  date  of  the  vesting  of  title  thereto  to  the  date  of  the  final 
decree  or  to  the  date  of  the  report  of  the  commissioners  of  estimate,  as  the 
case  may  be,  shall  be  awarded  as  a  part  of  such  owner's  compensation.     All 
of  the  provisions  of  this  title  relative  to  the  payment  by  the  comptroller  of  ofawaS^s. 
sums  awarded  as  damages  and  interest  thereon,  and  to  the  advance  payment 
on  account  of  such  damages,  and  relative  to  the  assignment  or  pledge  of 
awards,   shall  apply  to  awards   of   damages   for  the  taking  of   additional 
lands.     After  title  to  the  real  property  required  for  the  improvement  and   ex'cess^iands° 


96 


Sale  or  lease; 
restrictions. 


to  the  additional  lands  shall  have  vested  in  the  city,  the  additional  lands  may- 
be either  held  and  used  by  the  city,  or  sold  or  leased  by  it  in  the  manner 
provided  by  the  Greater  New  York  charter.  The  board  of  estimate  and 
apportionment  may  provide  that  such  additional  lands  shall  be  sold  or  leased 
subject  to  such  restrictions,  covenants  or  conditions  as  to  location  of  build- 
ings with  reference  to  the  real  property  acquired  for  the  improvement,  or 
the  height  of  buildings  or  structures,  or  the  character  of  construction  and 
architecture  thereof,  or  such  other  covenants,  conditions  or  restrictions  as 
it  may  deem  proper ;  and  such  additional  lands  shall  be  sold  or  leased  sub- 
ject to  such  restrictions,  covenants  or  conditions,  if  any,  as  the  board  of  esti- 
mate and  apportionment  may  have  prescribed,  which  shall  be  set  forth  in 
the  instrument  of  conveyance  or  lease. 


AUTHORITY  TO  ASSESS  AND  THE  ASCERTAINMENT  OF  THE  AMOUNT  PROPERLY 
ASSESSABLE  IN  A  PROCEEDING  IN  WHICH  ADDITIONAL  LANDS  MAY 
BE  ACQUIRED. 


Damage 
borne  by 
city  or 
assessed. 


Costs  and 
expenses, 
ditto. 


Award  for 
excess  lands 
separated. 


Rules  for 

determining 

damage. 


§  970-b.  In  every  proceeding  in  which  lands  additional  to  those 
required  for  the  improvement  shall  be  acquired,  the  board  may  determine 
whether  any,  and  if  any,  what  portion  of  the  damage  due  to  the  acquisition 
of  title  to  the  real  property  required  for  the  improvement,  shall  be  borne 
and  paid  by  the  city  of  New  York ;  and  the  whole  or  the  remainder  of  such 
damages  shall  be  assessed  upon  the  real  property  deemed  to  be  benefited 
by  the  improvement  in  the  manner  and  according  to  the  procedure  for  levy- 
ing assessments  for  benefit  in  proceedings  had  under  this  title.  The  board 
may  also  determine  whether  any,  and  if  any,  what  portion  of  the  costs 
and  expenses  of  the  proceeding,  including  the  expenses  of  the  bureau  of 
street  openings  in  the  law  department,  incurred  by  reason  of  such  pro- 
ceeding, shall  be  borne  and  paid  by  the  city  of  New  York;  and  the  whole 
or  the  remainder  of  such  costs  and  expenses,  including  the  expenses  of 
the  bureau  of  street  openings,  shall  be  assessed  upon  the  real  property 
deemed  to  be  benefited  by  the  improvement.  Where  part  of  a  parcel  of  real 
property  shall  be  acquired  for  an  improvement,  and  the  remainder  or  a 
portion  of  the  remainder  of  such  parcel  in  the  same  ownership  shall  be 
acquired  in  the  same  proceeding  as  excess  lands,  the  portion  of  the  damages 
due  to  the  acquisition  of  the  real  property  required  for  the  improvement, 
shall  be  determined  and  stated  separately  from  the  entire  damage  due  to 
each  such  owner.  In  determining  the  damages  due  to  the  acquisition  of  that 
portion  of  such  parcel,  which  is  required  for  the  improvement  (which  shall 
be  the  portion  thereof  properly  assessable),  the  same  rule  shall  be  applied 
as  would  govern  the  determination  of  damages  for  the  taking  of  the 
real  property  required  for  the  improvement,  in  case  no  excess  lands  were 
acquired.     Where  part  of  a  parcel  of  real  property  shall  be  acquired  for 


97 

the  improvement,  and  the  remainder  or  a  portion  of  the  remainder  thereof 
in  the  same  ownership  shall  be  acquired  in  the  same  proceeding,  as  excess 
lands,  the  damages  due  to  the  acquisition  of  title  to  the  real  property  required 
for  the  improvement   (which  shall  constitute  the  portion  of   the  owner's 
total  damages  as  to  such  parcel,  on  account  of  the  proceeding,  which  shall 
be  properly  assessable),  shall,  in  every  case,  equal  the  amount  which  woul 
be  awarded  to  such  owner  in  case  only  that  part  of   his   real  property, 
w^hich  shall  be  required  for  the  improvement,  were  acquired.     The  aggregate  oniy  cost  of 
of  damages  due  to  the  acquisition  of  the  real  property  required  for  the   to^be'^alse^ssed. 
improvement  shall  be  determined  by  the  court  or  other  tribunal  authorized 
to  determine  the  compensation  to  be  paid  to  the  owners,  and  when  so  deter- 
mined, as  aforesaid,  shall,  if  the  board  of  estimate  and  apportionment  so 
direct,  be  assessed  by  the  court  or  other  tribunal  authorized  to  levy  the 
assessment  for  the  improvement.     The  real  property  acquired  by  the  city  in  Excess  lands 
addition  to  that  required  for  the  improvement  shall  be  subject  to  assess-  lssis?ment. 
ment  for  benefit  due  to  the  improvement,  and  shall  bear  its  proper  share  of 
the  cost  and  expense  of  the  proceeding,  which  may  be  levied  and  collected 
with  the  taxes  upon  the  real  property  in  one  or  more  entire  boroughs.     The  Assessment 
assessment,  which  shall  be  levied  in  any  proceeding,  upon  the  real  property  Sne-hii?^^^ 
acquired  in  addition  to  that  required  for  the  improvement,  shall  not  in  the 
case  of  any  parcel  assessed  exceed  one-half  the  fair  value  thereof.     Interest  interest 

•^    ^  ,  ,  included 

from  the  date  of  the  vesting  of  title  to  the  date  of  the  final  decree  of  the  in  cost, 
court  or  to  the  date  of  the  final  report  of  the  commissioners,  as  the  case 
may  be,  on  the  sum  or  sums  determined  as  damages  due  to  the  acquisition 
of  the  real  property  required  for  the  improvement,  as  hereinbefore  provided, 
shall  be  included  in  and  stated  as  a  part  of  such  damages  due  to  the  acquisi- 
tion of  title  to  the  real  property  required  for  the  improvement.  Nothing  Award  not 
in  this  section  contained  shall  be  construed  as  authorizing  the  awarding  to  value  of 

.  .  ,  .         .  °       ,     entire  parcel. 

an  owner,  part  ot  whose  real  property  is  taken  tor  the  improvement,  and 
the  remainder  or  a  portion  of  the  remainder  of  whose  real  property  is 
taken  as  additional  lands,  any  greater  amount  of  compensation  than  such 
owner  shall  be  entitled  to,  by  reason  of  the  taking  of  his  real  property 
for  the  improvement  and  as  additional  lands,  considered  together  as  one 
parcel.  The  provisions  of  section  nine  hundred  and  seventy-a  and  of  this  Effect  on 
section  shall  be  construed  as  supplementing  and  extending  the  efifect  of  sions  of  this 
the  provisions  of  the  other  sections  of  this  title  so  as  to  provide  for  the 
acquisition  of  title  to  additional  lands  in  connection  with  an  improvement  and 
for  the  levying  of  assessments  for  benefit  in  such  proceedings  and  nothing 
in  section  nine  hundred  and  seventy-a  or  in  this  section  contained  shall  be 
construed  as  limiting  the  effect  of  the  provisions  of  the  other  sections 
of  this  title  in  their  application  to  the  acquisition  of  title  to  real  property 
required  for  an  improvement  when  acquired  in  a  proceeding  in  which 
additional  lands  shall  or  shall  not  be  acquired  or  to  the  levying  of  assess- 
ments for  benefit  in  such  proceedings,  except  as  the  provisions  of  the  other 


98 

sections  of  this  title  are  in  section  nine  hundred  and  seventy-a  and  in  this 
section  expressly  so  limited  in  their  application. 

Section  2.     This  act  shall  take  effect  immediately. 

State  of  New  York,  ) 

V  ss    ■ 

Office  of  the  Secretary  of  State.  ( 

I  have  compared  the  preceding  with  the  original  law  on  file  in  this  office, 
and  do  hereby  certify  that  the  same  is  a  correct  transcript  therefrom  and  of 
the  whole  of  said  original  law. 

Francis  M.  Hugo, 

Secretary  of  State. 


99 


PHOTOGRAPHS    AND    MAPS     SHOWING    OPERATION    OF 

SYSTEM  HERETOFORE  USED   IN   NEW  YORK. 

Explanatory  Note. 

These  photographs  and  maps  were  prepared  to  show  some  of  the  results 
of  the  system  of  condemnation  heretofore  used  in  the  absence  of  the  power 
of  excess  condemnation.  They  indicate  the  damaged  and  unusable  condition 
of  lots  mutilated  by  the  improvement  and  lots  so  situated  that  appropriate 
buildings  could  not  be  erected.  They  were  prepared  under  the  direction 
of  the  Department  of  Taxes  and  Assessments  by  Mr.  John  A.  R.  Duntze, 
of  that  department. 


100 

BLOCK   86— EAST    SIDE   OF   WEST    BROADWAY,    BETWEEN 
BARCLAY    AND    VESEY    STREETS 


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INDEX 


Annuity  system,  48. 

Argument    for    excess    condemnation,    13- 
22. 

B 

Baden,  replotting  in,   17. 

Birkenhead,   clearance   scheme   in,  47. 

Birmingham,  clearance  scheme  in,  43,  44, 

46. 
Brooklyn,  excess  condemnation  in  old  citv 

of.  55,  78. 
Building  lines,   imposition  of,  20. 


Chamberlain.   Joseph,   acquisition   of   slum 

property,  43,  44. 
Chisholm,      Samuel,      Glasgow     clearance 

scheme,  45,  46. 
Clearances,  cost  of,  49,  11,  76. 
Clearance  of  unsanitary  areas  in  English 

cities,  39-52. 
Cologne,  replotting  in,  17. 
Committee  on  Taxation,  report  of,  5-7. 
Compensation    for    compulsory    purchase, 

27-28-42 ;  for  injured  trade  interests.  25- 

26 ;    for   leaseholds,  25-26 ;    for  property 

unfit   for  human  habitation.  42. 
Connecticut,  law  on  excess  condemnation, 

59,  86-87. 
Crawford,    Andrew    Wright,    control    of 

frontages,  19. 
Cross'  acts,  40-41. 


Delancey    Street   widening,   gores   left   by, 

6-13-14. 
Demolitions,  44. 
Dewsnup,  slum  demolition,  49. 
Districting,  20. 
Douglas,  clearance  scheme  in,  47. 


Edinburgh,   clearance   scheme  in,  47. 

Edwards,  P.  J.,  compensation,  27-28. 

Embury  vs.  Connor,  55. 

Eubank  vs.  City  of  Richmond,  20. 

Ex  parte  Hadacheck,  20. 

Ex  parte  Montgomery,  20. 

Ex  parte  Quong  Wo,  20. 

Excess  condemnation,  argument  in  favor 
of.  13-22;  control  of  land  adjacent  to 
improvements,  5.  18-20 ;  financial  results 
of,  in  London,  23-38,  67-71 ;  replotting, 
6,  13-18;  recoupment,  (>-l ,  20-22. 


Facades,    control    of,    in    London    through 
excess  condemnation,   Zd-Zl . 


Financing  London  street  improvements  by 

recoupment,   23-38. 
Flatbush  Avenue  extension,  gores  left  by, 

6. 
France,  law  on  excess  condemnation,  24. 
Frankfort,  replotting  in,  15,  17-18. 


Germany,  replotting  in,  15-18. 

Glasgow,  clearance  scheme  in,  43,  44,  45- 

46,  48,  52. 
Gores  left  by  street  improvements,   13-18. 
Greenock,  clearance  scheme  in,  47. 

H 

Hamburg,  replotting  in,  17. 
Heights  of  buildings  restrictions,  20. 
Holborn-Strand   improvement,   sec  Kings- 
way. 
Housing  and   Town   Planning  Act.  41. 
Housing  of  the  Working  Classes  Act,  41. 
Installment  system,  48. 

I 

Italy,  law  on  excess  condemnation,  24. 

J 

Jackson,  T.  G.,  street  architecture,  18-19. 

K 

Kingsway  improvement,  amount  of  land 
acquired  in,  30;  cost  of,  2)Z\  number  of 
buildings  demolished  in,  25,  ZZ ;  plan  of, 
31  ;  recoupment  from,  ZZ. 


Land  Clauses  Consolidation  Act,  23,  24, 
25,  28. 

Land  municipalization,  51. 

Land  values,  increases  in,  from  street  im- 
provements,   21-22 ;    taxation    of,    49-50. 

Lex  Adickes,  17-18. 

Liverpool,  clearance  scheme  in,  42,  48. 

Livingston  Street  widening,  increased  land 
values  resulting  from,  d-l ,  20-21,  65. 

Loans,  47-49. 

London,  clearance  scheme  in,  46-47,  49- 
72-76 ;  excess  condemnation  in,  7,  23-38 ; 
recoupment   in.   67-71. 

London  traffic,  branch  of  Board  of  Trade, 
street  widenings,  34. 

M 

Manchester,  clearance  scheme  in,  47. 
Maps,  99-120. 

Maryland,  law  on  excess  condemnation,  59, 
88-90. 


122 


INDEX 


Massachusetts,  constitutional  amendment, 
60,  90;  law  on  excess  condemnation,  56, 
58,  78-84. 

Massachusetts  Committee  on  Eminent  Do- 
main, bill  drafted  by,  56;  compensation, 
25-26;  control  of  frontages,  19;  replot- 
ting  of  remnants,  13 ;  taking  of  excess 
land  a  benefit  to  owners,  17. 

Matter  of  Albany  street,  55. 

N 

National  Municipal  League,  Committee  on 
Excess  Condemnation,  report  of,  62-63. 

Nettlefold,  S.  S.,  compensation  in  clear- 
ances, 43. 

New  York  City,  constitutional  amendment, 
60,  90 ;  law  on  excess  condemnation,  7, 
53-54,  n,  92-98. 

Northumberland  Avenue  improvement,  re- 
coupment from,  30. 

O 

Ohio,  constitutional  amendment.  60,  90-91 ; 

law  on  excess  condemnation,  58,  85. 
Oregon,  law  on  excess  condemnation.   59, 

87-88. 

P 

Paris,  financial  results  of  excess  con- 
demnation in,  30. 

Pennsylvania,  law  on  excess  condemna- 
tion, 58,  85-86. 

Photographs,  99-116. 

Posen,  replotting  in.  17. 

Purdy,  Lawson.  gores  left  by  street  im- 
provements, 6,  13,  14. 

R 

Recoupment,  as  argument  in  favor  of  ex- 
cess condemnation,  6-1,  20-22 ;  financial 
results  of,  in  London,  23-38. 

Roth,  Louis,  Lex  Adickes,  17-18. 


Saxony,  replotting  in,  17. 

Sheffield,  clearance  scheme  in,  47. 

Sinking  funds,  48-49. 

Slums,  49. 

Southampton,  clearance  scheme  in.  47. 

Street  architecture,  18-19. 

Surplus  lands,  disposal  of,  in  London,  ZS- 

:^. 

Swansea,  clearance  scheme  in,  47. 
Sweden,  law  on  excess  condemnation,  24. 


"  Taxpayers,"  19. 

Thompson,    W.,    compensation    in    clear- 
ances, 42-43. 
Torrens  Acts,  39-42. 

U 

Unearned  increment,  appropriation  of,  by 
excess  condemnation.  20. 


Virginia,  law  on  excess  condemnation,  59- 
88. 

W 

Welch  z/j.  Swasey,  20. 

Widenings,  not  so  desirable  as  new  streets, 
33-34. 

Wiesbaden,  replotting  in,  17. 

Williamsburgh.  excess  condemnation  in 
old  city  of,  55. 

Wisconsin,  constitutional  amendment.  60, 
91 ;  law  on  excess  condemnation.  59. 

Wolverhampton,  clearance  scheme  in.  47. 

Working  classes,  defined,  44-45 ;  rehous- 
ing of.  in  street  improvements,  25. 


Young,  Andrew,  increased  values  from 
street  improvements,  21 ;  rehousing  of 
the  working  classes.  24-25. 


